It has been a big moment for court reform. President Biden has proposed a slate of important if vaguely defined reforms, including a new ethics regime for the Supreme Court. Vice President Harris and other Democrats have endorsed that effort. And, when speaking at the Ninth Circuit judicial conference, Justice Elena Kagan argued that the justices’ ethics code should be enforced by a panel of lower court judges selected by the Supreme Court’s Chief Justice. But while these proposals rest on valuable insights, they also encounter serious shortcomings.
First, these proposals leave up in the air whether, or how, the justices can be removed from office based on misconduct. Because the Constitution expressly provides for removal through impeachment, any other attempt to remove a justice from office is legally suspect. Compounding that issue, enforcement by lower court judges may seem at odds with the Constitution’s provision that there be “one supreme Court.” Yet a code of ethics that does not allow for a justice’s removal may be effectively toothless.
Second, Justice Kagan’s suggestion that the enforcers be handpicked by the Chief Justice raises impartiality concerns. While Justice Kagan made clear that she had faith in the integrity of Chief Justice John Roberts, others may doubt that he would select fair-minded arbiters. And there is, of course, the worry that future Chief Justices might themselves be caught up in ethical scandals or otherwise be undeserving of the public’s trust. A more impartial and lasting mechanism of selecting enforcers is warranted.
Finally, any ethics reform must be achievable without invoking the Article V process for promulgating a constitutional amendment. At least for the time being, a constitutional amendment on this topic (or almost any other one) is simply infeasible, owing to its strong supermajority requirements. In our polarized polity, the most that can realistically be hoped for is legislation. Yet legislation must operate within the confines of the Constitution, including the tenure during “good Behaviour” that it affords the justices.
To overcome these difficulties, we propose a solution with two main components. First, a statute should provide that a large council of randomly selected federal judges can hear ethics complaints against individual justices of the Supreme Court. Second, justices should commit to resign from office in the event that the council finds such a serious ethical violation that a justice should no longer hold office. The combination of these reforms would generate non-partisan judicial accountability with teeth.
The proposal’s first component — a randomly selected judicial council — has clear appeal. It offers a bipartisan group of federal judges who are independent of the political branches and whose selection would not depend on the favor of the Chief Justice or any other justice. Hardly a group of outsiders, the council members would themselves be subject to some of the ethical principles they apply. Yet they would also be at a remove from the Court, and so would avoid the problem of having judges sit in judgment of their coworkers.
To further guard against partisanship and bias, we also propose that the council be large and subject to a supermajority voting threshold. For example, the council might be staffed by twenty randomly selected federal judges serving staggered two-year terms, with a three-quarters vote required to call for a justice’s resignation. This system would guard against the possibility that personal grudges or partisan impulses might influence the council’s decisions. To further secure the process’s integrity, lower court judges might have to recuse from the council while any cases they worked on are under review at the Court.
Our proposal’s second component is the justices’ commitment to resign. Justices currently have substantial discretion to time their departure from office through their own voluntary resignations. As a result, a justice can influence who is chosen as her successor. Most recently, in 2022, Justice Stephen Breyer issued a conditional resignation to President Biden that would take effect if and when two conditions occurred: (1) the Court needed to have risen for its summer recess and (2) his successor needed to have been “nominated and confirmed.” The logic of issuing conditional resignations that only become effective in the future extends to resignations that are contingent on an appropriate finding of unethical conduct. And that commitment could be rendered binding, either by statute or court rule.
The system we propose might be compared with the Judicial Conduct & Disability Act (JCDA), which governs complaints relating to ethics and incapacitation against lower federal court judges. The JCDA assigns a screening and investigatory role to circuit chief judges and special committees, resting most final adjudicatory authority in circuit-level judicial councils or, in extraordinary cases, the Judicial Conference of the United States led by Chief Justice. Available sanctions include censure, temporary suspension from new case assignments, requests to resign voluntarily, and referral to the House of Representatives for possible impeachment.
By contrast, we would create a new, nationwide judicial council that is separate from the Chief Justice. Senior members of the council and special committees might play a screening and investigatory role similar to those provided by the JCDA. We would also create a stronger sanction — effectively, a mandatory resignation. The power to trigger that sanction is especially important in connection with the justices because it can render softer sanctions more effective. For example, if the council called for a justice’s recusal, that order could be backed by the threat of a mandatory resignation in the event of the justice’s noncompliance.
The ability of the council to call for a justice’s recusal would also respond to current concerns that the Court’s legitimacy is undermined by their unwillingness to recuse themselves from matters where there is arguably an appearance of bias. Indeed, along with their conditional resignation, justices might analogously commit to recuse themselves whenever the council determines that such action is appropriate.
A full proposal would also need to flesh out important procedural issues — including who would have standing to bring a complaint. At a minimum, any litigant with a matter for which the Court had granted certiorari should have standing to bring a complaint. The JCDA allows for complaints by “any person,” but a narrower rule might be appropriate to limit political gamesmanship at the Court.
One might object that a justice cannot commit to what is in effect a kind of term limit, when the limit is not specified in the Constitution. (In addition to committing to resign in the event they are found to have violated an ethical rule, the justices might also commit to resign upon the completion of a preset term of service — thus accomplishing Supreme Court term limits without a constitutional amendment as well.) But as Justice Breyer’s example illustrates, the Constitution is compatible with a practice of resignation commitments. This longstanding and growing practice of conditional resignations is legally significant. It can be viewed as a kind of precedent that fills in the meaning of Article III’s spare text.
True, some commitments may run afoul of constitutional values, such as if a jurist compromised her independence by promising to resign if she ever voted for a particular party. Other improper commitments could exhibit favoritism or entangle a judge in politics, such as if a jurist committed to resign if and only if her preferred successor were selected. But the kind of commitment we envision here would preserve judicial independence while enhancing the third branch’s public legitimacy in the face of ethical concerns. And enforcement would stem from commitments made by members of the “one supreme Court” itself. So these binding resignations (unlike some others) would comport with both the text and the purpose of Article III.
A more practical objection is that no justice would ever willingly enter into a commitment to resign. But the Senate could insist that prospective justices either commit to an enforceable ethics regime or risk not being confirmed. And a statute could establish a default rule that federal court nominees commit to the ethics regime unless they expressly state otherwise — thereby placing the onus on nominees to explain why they would resist ethics rules akin to those in place for many other government actors.
Incumbent justices pose a different challenge. Why would they give away a life tenure that they already possess? One response is to focus on the long term and accept that gradual ethics reform is the most that can realistically be hoped for. But Justice Kagan’s recent remarks illustrate that our proposal also has more immediate appeal. The Court needs public legitimacy to function, and a strong commitment to judicial ethics would help supply that legitimacy. So even incumbent justices have reason to accept an enforceable ethics code — and to encourage their colleagues to sign on, too.
The fact that our proposal depends on the justices’ own participation is ultimately a feature, not a bug. One risk inherent in court reform is that the judiciary might become enervated or dominated by the political branches — essentially broken by well-intentioned efforts to repair it. An ethics regime that depends on voluntary participation flips that script. Instead of standing athwart democratically supported reforms, the justices would help create the solution.
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