05.06.22

Whitehouse Releases Previously Undisclosed Correspondence with SCOTUS, Lower Courts on Poor Ethics and Transparency Standards in the Federal Judiciary

SCOTUS and Administrative Conference admit no clear rules govern judges’ travel and hospitality

Washington, DC – During a Senate Judiciary Courts Subcommittee hearing on transparency and accountability in the federal courts, Subcommittee Chairman Sheldon Whitehouse (D-RI) entered portions of his extensive correspondence with the Supreme Court, the Administrative Conference of the Courts, and other judiciary officers into the official subcommittee record.  The correspondence reveals new details about the lack of ethics and transparency rules for Supreme Court Justices and lower court judges – a problem that harms the judiciary’s legitimacy. 

In recent years, Whitehouse, House Judiciary Courts Subcommittee Chairman Hank Johnson (D-GA), and other members have pressed the federal judiciary on a range of serious ethics concerns.  Among them are lax recusal standards for judges, weak disclosure rules for special interests filing documents with the courts, poor reporting of travel and hospitality for judges, and the absence of a code of ethics for the Supreme Court.  The hearing this week examined these issues with legal ethics experts and practicing attorneys.

The correspondence entered into the record includes previously undisclosed letters between Whitehouse and the courts.  In one newly released letter, the Administrative Conference of the federal courts admits that no clear rules govern Supreme Court justices’ travel and hospitality – like the luxury hunting trip Justice Antonin Scalia was on when he died in 2016.  That answer is consistent with the response given by a counsel for the Supreme Court in another newly released letter.

We all know that courts derive their power from public confidence,” said Whitehouse during the hearing on Tuesday.  “They don’t have armies.  They don’t have budgets.  We trust judges with the judicial power in the faith that they will not abuse it, that they will treat people fairly and decide matters impartially – not to preconceived ends pressed on them by special interests.  Well, it’s not going well.”

Below is a list of the letters Whitehouse entered into the hearing record.  Newly released letters are indicated. 

Recusal

Supreme Court law and federal statutes call for justices and judges to sit out cases where they may have a personal stake in the outcome, or where it could appear that they have a conflict of interest.  Whitehouse and his colleagues have pressed justices and judges about unclear and weak standards for recusing from cases where their impartiality could be questioned.  

  • Letter from Johnson, Senator Richard Blumenthal (D-CT), and Whitehouse to Justice Amy Coney Barrett (4/16/21).  The letter asked Justice Barrett to address whether her recusal was required in Americans for Prosperity v. Bonta – a case involving a litigant whose affiliate organization spent $1 million to boost a campaign for Barrett’s nomination to the Court.  Justice Barrett, and other similarly situated justices, failed to recuse and provided no explanation.  [FULL LETTER]
  • Letter from Senator Elizabeth Warren (D-MA), Representative Pramila Jayapal (D-WA), Whitehouse, and 21 other Democrats to Chief Justice John Roberts and Justice Clarence Thomas (3/28/22).  The letter urged Justice Thomas to explain his failure to recuse from future cases involving January 6 or the 2020 election due to apparent involvement by his wife, and requested that the Court adopt a code of conduct by April 28, 2022.  [FULL LETTER]
  • Letter from Whitehouse and Johnson to Chief Justice Roberts (4/4/22).  The letter urged Chief Justice Roberts to uphold his “duty to safeguard public faith in the judiciary” by “prevailing on Justice Thomas to heed his ethical and statutory requirements” to recuse in future cases involving January 6 or the 2020 election.  There has been no response.  [FULL LETTER]

Read Whitehouse’s op-ed in the Washington Post for more on the standard of recusal that should apply to Supreme Court justices. 

Hospitality

The judiciary has adopted significantly less-stringent financial disclosure requirements than other branches of government, and has failed to make information on judicial branch disclosures readily available to the public.  As a result, our nation’s highest judicial officers are subject to the lowest standards of transparency of any senior officials across the federal government.  Whitehouse has worked across the aisle to shine a light on this problem, and has written repeatedly to the Supreme Court and Administrative Conference on the issue.

  • Letter from Whitehouse and Senator Lindsey Graham (R-SC) to the Supreme Court (2/4/21).  The letter states, “A legislative solution may be in order to bring the judiciary’s financial disclosure requirements in line with other branches of government if the Court does not address” its lax gift, travel, and “personal hospitality” requirements.  The letter asked the Court to answer five questions, including its interpretation of “personal hospitality” for justices and judges and “[w]hat plans, if any” the Court has to adopt a code of conduct.  [FULL LETTER]
  • ***NEWLY RELEASED*** Letter from Supreme Court Legal Office to Whitehouse and Graham (7/12/21).  A legal counsel for the Court responded to Whitehouse and Graham’s February 4, 2021 letter to say that the justices “comply with the same restrictions on gifts and outside activities that are applicable to the rest of the judiciary.”  The counsel also responded that the Justices “rely upon” the lower courts’ Code of Conduct “in evaluating ethical issues more broadly.”  The counsel failed to point to a binding, enforceable standard for Supreme Court justices, and gave no indication that the Court plans to adopt one.  [FULL LETTER]
  • ***NEWLY RELEASED*** Letter from Whitehouse to Courts of Appeals Chief Judges, the Administrative Conference, and the Committee on Code of Conduct (8/30/21).  The letter asked each recipient to answer how the judiciary would assess a judge’s duty to disclose under the “personal hospitality” exception in various hypotheticals.  Whitehouse for months received no response from any Circuit.  [FULL LETTER]
  • ***NEWLY RELEASED*** Letter from Whitehouse and Johnson to Courts of Appeals Chief Judges, the Administrative Conference, and the Conference’s Committee on Code of Conduct (4/18/22).  The letter, joined this time by Representative Johnson, noted that the members did not receive any reply to their August 30, 2021 letter, and repeated their requests from that letter.  [FULL LETTER]
  • ***NEWLY RELEASED***Letter from the Administrative Conference to Whitehouse and Johnson (4/29/22).  The Administrative Conference acknowledged that no specific guidance exists in response to many of the members’ hypotheticals on “personal hospitality,” and referred the matter to the federal courts’ Committee on Financial Disclosure.  [FULL LETTER]

Notably, after the Supreme Court failed to recognize or acknowledge that there was any problem, the Administrative Conference of the Courts conceded there was one, and referred the matter for further official consideration within the judiciary.  

Amicus Disclosure

Amicus curiae (or “friend of the court”) briefs are written by non-parties to provide information, expertise, insight, or advocacy to courts.  But they have also become an increasingly influential tool for powerful interest groups seeking to lobby the federal courts.  While interest groups lobbying Congress face stringent financial disclosure requirements, no similar requirements exist for judicial lobbying.  Whitehouse and his colleagues have written extensively urging the federal courts to adopt a stronger standard of disclosure for interests filing amicus briefs.

  • Letter from Whitehouse and Johnson to the Supreme Court (5/13/20).  The letter pointed to examples demonstrating why the current amicus disclosure rule is inadequate, including Google LLC v. Oracle America Inc. and Seila Law LLC v. CFPB.  [FULL LETTER]
  • Letter from the Supreme Court to the Judicial Conference (9/18/20).  The Supreme Court Clerk of Court forwarded his correspondence with Whitehouse and Johnson to the Judicial Conference’s Committee on Rules of Practice and Procedure, stating that the Committee “may wish to consider whether an amendment” to the lower court disclosure rule “is in order.”  The Clerk stated “[t]he Committee’s consideration would provide helpful guidance on whether an amendment” to the Court’s disclosure rule is necessary because the two rules are similar.  [FULL LETTER]
  • Letter from Whitehouse and Johnson to the Judicial Conference (2/23/21).  The letter conveyed the members’ concerns about the judiciary’s inadequate disclosure rules and included recommendations for improving the rules, such as Whitehouse and Johnson’s AMICUS Act.  [FULL LETTER]
  • Letter from the U.S. Chamber of Commerce to the Judicial Conference (10/6/21).  The U.S. Chamber of Commerce wrote in opposition to greater amicus disclosure, arguing that such disclosure would likely unconstitutionally chill speech and misunderstands the relationship between amicus donors and an amicus brief’s arguments.  [FULL LETTER]
  • Letter from Whitehouse and Johnson to the Judicial Conference (11/10/21).  The letter responded to arguments made by the U.S. Chamber in opposition to amicus disclosure.  The letter noted that the Chamber is perhaps the greatest benefactor of the judiciary’s lax disclosure requirements.  [FULL LETTER]

Notably, again, the Supreme Court failed to acknowledge anything was wrong, despite Whitehouse raising this issue in his own amicus briefs filed in Janus v. AFSCME, Seila Law v. CFPB, and American for Prosperity Foundation v. Bonta.  The Clerk of the Court ultimately felt compelled to refer the question to the Judicial Conference, de facto acknowledging the Senator’s concerns.   

Read more about amicus disclosure in Whitehouse’s Yale Law Journal article.

In April, Senators Whitehouse and Blumenthal and Congressmen Johnson, Jerrold Nadler (D-NY), Mike Quigley (D-IL), David Cicilline (D-RI), and Mondaire Jones (D-NY) introduced the Twenty-First Century Courts Act, a robust legislative plan to promote accountability and increase transparency in the federal courts.  A hearing was held on the bill this week in the Senate Judiciary Subcommittee on the Courts, and further action is expected in the equivalent House committee. 

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