Where is HR for the Supreme Court?

Issues
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The U.S. Supreme Court in the late afternoon light with an American flag flying next to it
The U.S. Supreme Court building in Washington, D.C. Photo by Stephen Emlund

The U.S. Supreme Court, one of our nation's most powerful institutions, has zero infrastructure in place to investigate ethics violations - and that's a problem.  

For example, if there are credible allegations that a Supreme Court Justice leaked the results of a ruling, there is no procedure for investigations or any rule prohibiting the leak.  

This, unfortunately, is not merely a hypothetical. The revelation of a second leak of a Justice Alito-authored opinion confirms that whatever improvised plan to find the source of these leaks is not enough. The Court must catch up to the other two branches of government by instituting internal ethics standards and installing compliance officials. 

CLC sent a letter to Chief Justice John Roberts urging him to address numerous allegations of unethical conduct in his Year-End Report on the Federal Judiciary at the end of December.   

In May, someone leaked the draft Dobbs v. Jackson Women’s Health Organization opinion, which eliminated the constitutional right to abortion. It was the most shocking breach of trust in the Court’s history. The befuddling response of the Chief Justice was to direct the Supreme Court Marshal to investigate, even though by statute the Marshal is essentially a sergeant at arms with no investigative responsibilities or experience.  

Now, new allegations of a leak by Justice Alito have surfaced. These allegations must be investigated, either to remove the cloud of suspicion surrounding him or to expose serious misconduct within the nation’s highest Court.  

Based on the reaction to the Dobbs leak in May, an investigation at minimum is not a controversial step to take. Senator John Kennedy (R-LA) was appalled by the leak, stating that “this leak seriously undermined the confidence we all have in the Supreme Court.” He went on to say that there should be an investigation and “once the leaker is found, that person should be fired.”  

His fellow committee member Senator Ted Cruz (R-TX) said that it is “impossible to overstate the gravity of the violation.” And Chief Justice Roberts requested an investigation because it “was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.” 

Notably, these calls for resolution do not refer to a violation of any Supreme Court ethics rules. They do not call for an independent investigatory body within the Supreme Court to act with haste. Nowhere in any statement do these authority figures refer to longstanding ethics laws that emphasize the fairness benefits of adhering to procedure or the critical role the public’s trust plays in the legitimacy of the institution. That’s because none of these things exist. 

The Supreme Court need not reinvent the wheel to investigate these leaks. There are already countless models in the human resources department of most corporations. More sophisticated companies may have compliance or internal investigation teams, but the common denominator is a group of employees who implement the internal conduct policies. More analogous examples can be found within the ethics programs of the executive and legislative branches of the federal government. 

In the executive branch, each agency head is responsible for designating an ethics official to foster compliance with the Standards of Conduct and other ethics rules. When an allegation of misconduct arises, the ethics officials gather relevant facts and determine if a violation has occurred. It is up to the leadership of the agency to determine any appropriate penalties for the misconduct, and if the politically appointed agency head is the source of the misconduct, the president can determine the proper course of action under the watchful eye of voters. All of this is done without separation of powers issues. 

In Congress, each chamber has ethics committees responsible for compliance with ethics rules. Without a doubt, these ethics committees do not enforce the ethics rules with the aggressiveness and consistency that they should, but compared to the Court’s nonexistent structure, they are well-established beacons of excellence. The mere fact that there are ethics rules and a body with whom to file complaints when the rules are broken is a paradigm the Court should implement at minimum. 

With allegations of Justices engaged in improper conduct on the rise, the specific concerns about leaks crystallize the need for an internal fact gathering body to answer serious questions and restore public trust. Such an investigative body necessitates a clear code of conduct as guidelines for the behavior of Justices.  

The Constitution states that Justices "shall hold their Offices during good Behaviour." So why, more than 200 years later, are there no rules for what that “good behaviour” is, or consequences for when that behavior isn’t exercised?  

Kedric is CLC's Vice President, General Counsel, and Sen. Dir., Ethics
Delaney is a Senior Legal Counsel on CLC's Ethics team.