Credit: Courtesy Nicole Poirot
The public has lost faith in the branch of government designed to be the most direct expression of the will of the people. According to Gallup, the United States Congress has a 12 percent approval rating by the general public as of February 2024. One source of this disapproval is the inability of congressional members to agree on issues as simple as funding the government outside of temporary stopgap measures. While the approval rating of the sitting American President is comparatively higher, his 58 percent disapproval rate does not exactly instill confidence in the hearts and minds of young future leaders looking for reasons for optimism in our public institutions. While approval ratings of these institutions trend downwards, citizens continue to work and mobilize in order to effectuate positive change. Grassroots efforts can spur congressional action to reshape the law and offer glimmers of faith in our elected institutions.
Among the three branches tasked with balancing the monumental powers of our federal government, the Supreme Court (SCOTUS) was intended to be above the fray in terms of political dynamics. A group of individuals were tasked with interpreting and conveying what the law is, in accordance with Chief Justice John Marshall’s articulations in Marbury v. Madison. The nonpartisan interpretation of law requires adherence to a strong code of ethics. Yet a pattern of questionable behavior on the part of multiple SCOTUS justices over the years has revealed the truth of the situation.
For example, Justice Clarence Thomas has received over two dozen private jet flights, over three dozen all-expense-paid luxury vacations, and over a dozen VIP passes to sporting events and the like since his time on the SCOTUS bench. Additionally, Justice Samuel Alito took a fishing vacation with a billionaire who was represented before the Supreme Court. The use of public funds for luxury vacations do not instill confidence in the heart of the American people, nor public officials who have sworn to uphold the law. Texas Governor Greg Abbott illustrated how rule of law and good faith have been degraded by defying a direct order from the SCOTUS. If an individual responsible for carrying out the law in one of the largest and most influential states in the union refuses to obey the most powerful court in the land, what hope do the rest of us have?
Last year, an ethics bill from the United States Senate offered a potential form of redress targeting the SCOTUS judge’s behavior. If it had progressed all the way to President Joe Biden’s desk, the bill would’ve addressed a number of consequential issues that have emerged with respect to judicial misconduct at the highest level. The bill would address the lack of a code of conduct adhered to by SCOTUS members, disclosure requirements for gifts, travel and income from outside of the law, and enhanced recusal requirements. Unfortunately, the bill died shortly after emergence from the Senate Judiciary Committee.
The failure of Chief Justice Roberts to address the issues plaguing the Court in his annual report is an indication of the pervasiveness of the problem. Instead, the Court pledged to adhere to an expansive code of conduct in an official statement. The statement commits SCOTUS justices to a broad range of ethical provisions, of which they are already expected to follow. The preamble affirms that the articulated code is not new.Thus, the statement simply republishes the existing code. It is also vague enough that it has come under scrutiny from legal ethics experts for leaving out remedies that would hold justices accountable for transgressions.
This statement from the Chief Justice does not account for the gap in the federal judicial apparatus perpetuated by 28 U.S.C. §351. The statute lays out the circumstances in which a party may file a complaint of misconduct against a sitting judicial officer, and subjects them to official investigation and the imposition of penalties. Individuals are permitted to allege prejudicial conduct by a judge contradictory to court efficacy. Additionally, the delineated process tasks the chief justice with supporting or dispensing with the allegation. However, the statute does not apply to the members of the Supreme Court of the United States; the Judicial Council has no options to oversee and address misconduct on the part of the most powerful judges in the nation. Such immunity has been made even more clear by Justice Samuel Alito’s assertion that “[n]o provision in the Constitution gives [Congress] the authority to regulate the Supreme Court-period.”
One thing the federal government could do, most aptly through the legislature, is enact a measure that would establish the creation of a Commission on Judicial Performance. Like that of California, the Commission would be tasked with enforcing the standards of conduct laid out via the code of conduct for United States judges. The jurisdiction of the Commission in California applies to judges at all levels of the judicial system, to include superior courts, intermediate appellate courts, and the state Supreme Court.
For example, in 2023, California’s Commission on Judicial Performance censured a San Diego Superior Court Judge for misconduct after missing 155 unauthorized days of court. Without the Commission’s oversight there would be no accountability for a judge’s failure to uphold his judicial oath. As a state agency, the California Commission on Judicial Performance enjoys autonomy from the influence of the other governmental branches that it otherwise would not. It is only due to its creation via Article VI, Section 18 of the California Constitution that the commission is free from the whims and partisan rhetoric that agencies established by the legislature are subjected to. The exercise of investigatory powers of a similar federal agency would bear resemblance to those of the special counsels appointed by the federal Department of Justice. However, the special counsels are subject to the oversight of the U.S. Attorney General, who ultimately serves at the pleasure of the U.S. President. Such a chain of authority does not bode well for those who wish to preserve accountability from tainted politics.
Thus, accountability should and would be best rendered through a constitutional amendment. Justice Alito is correct in stating that nothing in the U.S. Constitution specifically imbues Congress with authority to hold the Supreme Court accountable to its ethical obligations. That is precisely why a constitutional amendment is needed to promote integrity among those tasked with interpreting the governing doctrine nationwide. Large states, like California and Texas, can ingrain authority and autonomy for judicial accountability agencies in their own charters. California is the hallmark of American liberalism, while Texas is a symbol of national conservatism. Despite the differences in the states’ political ideology, there is shared support for nationwide judicial accountability. A poll taken last year revealed that approximately 75 percent of voters, to include a majority of Democratic, Republican, and independent voters, support judicial ethics reform for the U.S. Supreme Court. Moreover, a survey of 900 judges nationwide found that 97% support the implementation of a Supreme Court ethics code. The success of California and Texas commissions, and the shared support of judges and American people, provides hope for a general code of ethics for the SCOTUS.
*The views expressed in this article do not represent the views of Santa Clara University.
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