This week, the Senate Judiciary Subcommittee held a long overdue hearing on ethical standards in the U.S. Supreme Court. CLC’s Vice President, General Counsel, and Senior Director of Ethics Kedric Payne provided testimony for the hearing entitled “An Ethical Judiciary: Transparency and Accountability for 21st Century Courts.”
CLC’s testimony focused on how the Supreme Court’s ethics rules lag behind the executive and legislative branches. Specifically, CLC explained that the Supreme Court ethics rules do not include: a compliance mechanism for recusal requirements; a code of conduct; or full disclosure of privately sponsored travel.
The absence of these provisions has resulted in persistent ethics concerns implicating conflicts of interest involving the justices, which contribute to low approval ratings and loss of confidence in the Court. At the hearing, senators on both sides of the aisle emphasized the importance of integrity in the federal courts, including and especially in the Supreme Court.
While some senators questioned the constitutionality of Congress imposing ethics standards on the judicial branch, several witnesses testified to the authority and in fact the duty of Congress to ensure ethical conduct in the Supreme Court.
Sen. Lindsey Graham (R-SC) emphasized that there is bipartisan support for more transparency in the Supreme Court, specifically surrounding the interactions between the Court and the private sector.
He noted that without rules governing, for example, the provision of free monthslong overseas travel to justices by private parties, the appearance of impropriety would damage the reputation of the nation’s highest court.
The backdrop of the hearing was the leaked draft Supreme Court opinion overturning long-standing precedent on abortion rights.
Because there are very few ethics rules governing those who work in the Supreme Court and an extreme lack of transparency, it is unclear what processes or procedures were violated and whether anyone will face consequences for providing the opinion to the public prematurely.
It is critical for the public’s trust in all our democratic institutions that the Supreme Court be held to the highest possible ethical standards. Increasing accountability for ethics violations and requiring greater disclosure are a few meaningful steps in the right direction.