June 15, 2023

This Obscure Judicial Agency Could Tighten Ethics for Justices

Sen. Sheldon Whitehouse (D-R.I.) writes that the Judicial Conference of the United States could strengthen the ethics rules that apply to the US Supreme Court justices—without additional authorization from Congress.

The US Supreme Court is likely to make history this month on issues like affirmative action and voting rights, but this term may ultimately be defined by ethics scandals and questions surrounding the justices.

As the justices drag their feet on making changes, a little-known agency within the judicial branch of government could have an outsize role in ethical reform. The Judicial Conference of the United States administers laws that Congress has passed regarding judicial ethics. In administering those laws, the Judicial Conference has statutory power to set up rules and procedures that govern both judges and Supreme Court justices.

By statute, the Chief Justice of the Supreme Court chairs this body, which comprises chief judges from the circuit courts of appeals and judges from district courts within each circuit.

The Judicial Conference, established by Congress in 1922, meets twice a year to consider policy issues affecting the judiciary, including ethical issues. For example, the Judicial Conference amended the Judicial Code of Conduct in 2019 following allegations from judicial clerks that the federal judiciary needed to do more to protect against workplace harassment.

Contrary to what Supreme Court justices suggested in their recent “Statement on Ethics Principles and Practices,” this power is crystal-clear, and the Supreme Court has long abided by it.

The chief justice’s recent public statement that more needs to be done on Supreme Court ethics signals an important opening for the Judicial Conference, the judiciary’s rule-setter in many of these areas.

There’s reason to look with some confidence to the Judicial Conference for healthy leadership in this space.

Power to Close Loopholes

First, when presented with a trick used by at least one Supreme Court justice to obtain free and undisclosed vacations, the Judicial Conference recently slammed the door on that behavior. The justice had solicited or otherwise obtained “personal invitations” to resorts, often from resort owners the justice had never met, and then treated the free vacation as “personal hospitality” not subject to disclosure.

I seriously doubt a federal judge on any other court would countenance such a gambit, and it was reassuring that the Judicial Conference responded with firmness and clarity.

Disclosure Around Amicus Briefs

A second issue presently before the Judicial Conference is front-group amici curiae, or friends of the court, who file briefs in important cases. Amici curiae file briefs in coordinated flotillas around major cases without disclosing who the real interest is behind the briefs.

The Supreme Court and lower courts have rules requiring some disclosure, but these rules don’t provide real transparency into this anonymized, coordinated judicial lobbying—which has sometimes been paid by actual parties in the case, but usually is the work of big special interests out to affect policy.

In some cases, amici have appeared under fictitious names for entities that contributed millions to the confirmations of Supreme Court justices—and left that link undisclosed. This front-group amicus problem gives the Judicial Conference another important opportunity to clean up Supreme Court proceedings.

Referrals to Attorney General

Third is the responsibility of the Judicial Conference to refer cases to the attorney general where there is “reasonable cause” to believe a failure to disclose income or gifts under the ethics laws may have been “willful,” a responsibility obviously relevant to questions about billionaire emoluments to Justice Clarence Thomas.

My courts subcommittee of the Senate Judiciary Committee recently heard testimony from a federal judge and former member of the Judicial Conference suggesting that previous questions more than a decade ago about gifts of yacht and jet travel from billionaire Harlan Crowe to Thomas were erroneously handled.

The Judicial Conference’s designated Financial Disclosure Committee may have asked and answered the wrong question. Its procedure assured no consideration of the inquiry by the full Judicial Conference, and the proper statutory role of the attorney general was defeated.

As that judge testified, the role of the attorney general is an important separation-of-powers check on judicial clubbiness. Now that the same disclosure question has returned on new facts, the Judicial Conference has the opportunity to acquit itself more transparently.

There is little doubt reforms are urgently needed at the Supreme Court. Other judges know better than anyone how far the justices’ behavior has strayed from judicial norms. The Judicial Conference is well-positioned by Congress to assure that existing laws are properly applied to justices of the Supreme Court. All the elements are present for a meaningful reform to emerge from the Judicial Conference and help redeem the Supreme Court.

And if not, we in Congress stand by to proceed.

By: Sen. Sheldon Whitehouse (D-RI)