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for decades, Supreme Court Judges have essentially sidestepped questions regarding conflict of interest by saying “trust us” or “we’re separate”. He has refused to be bound by an official code of conduct and complaint procedures that cover other federal judges.
But mounting public pressure may finally bring about change. Court sources told CNN that internal discussions, which went back to at least 2019, have been revived. However, the timing of any public resolution is uncertain, and it appears that some justices are more optimistic than others about reaching a consensus.
This week, in an action that reflects growing national concern over the behavior of judges, the American Bar Association the house of Representatives Approved a motion urging the High Court to adopt a “comparable” code of conduct for US lower court judges.
Unlike liberal groups seeking to establish ethics rules, neither the ABA nor its policy-making House of Delegates has been known to criticize the High Court. The 591-member House of Delegates is more tied to establishment positions than flamethrowing advocacy.
Separately, members of Congress reintroduced legislation on Thursday that would lead to a code of conduct for Supreme Court justices. A similar bill failed last year, but lawmakers say growing public criticism could give the legislation more traction.
The current accelerated scrutiny of judges’ extra-curricular behavior arises against a backdrop of rule-breaking decisions. The conservative majority is more willing than prior courts to overrule decades of precedent, most shockingly last june decision Overturning the 1973 Roe v. Wade abortion rights landmark. Court has recently been raised Dobbs’ opinion undermined by early leaks which overturned Roe and other security lapses.
Together, the substance of the cases and the refusal to address issues of ethics lead to an unaccountable court that will rule and act as it pleases without concern for the public.
New York University law professor Stephen Gilers believes the court’s position has been undermined by its reluctance to address ethical concerns.
“There is no desire to engage with the repeated calls from various places, and now the ABA,” Gilers said, calling the court’s lack of response “incredible, tone-deaf” and adding, “I think This has hurt the reputation of the court.”
Growing criticism of America’s top court, including members of Congress demanding accountability, could eventually cause the judges to act. He first worked behind the scenes to formalize the rules of ethics, but the effort stalled. In 2019, Justice Elena Kagan, commenting publicly on the Code of Conduct conversation, told a US House committee that discussions were ongoing. “It’s something that is being thought about very seriously,” Kagan said.
Court sources told CNN that internal discussions are ongoing and some justices are hopeful that a code can be drawn up in due course.
Judges rarely address the separation, which is why they decide to sit out a case or are hearing a case that critics say could create a conflict. His disclosure filings include limited information about his finances, his spouse, and various reimbursements for travel.
The activities of the spouses have given rise to more questions regarding disapproval, particularly concerning Justice Clarence Thomas. He settled matters with his associates that arose in the past President Donald TrumpHis 2020 re-election bid failed, as his wife, Virginia “Ginny” Thomas, worked with White House aides to challenge Joe BidenWin of.
Neither Justice Thomas nor Chief Justice John Roberts responded to press inquiries about possible conflicts of interest after information about Ginny Thomas’s activities became public through a US House investigation. January 6, 2021, Rebellion In the Capitol.
Ginny Thomas’ attorney, Mark Paoletta, suggested in testimony before a US House subcommittee last year that the Supreme Court continue the existing practice of consulting with existing codes covering lower-court judges, rather than formally following through. Can keep During an April 2022 hearing titled “Building Confidence in the Supreme Court through Ethics and Recertification Reforms”, Paoletta said: “There is nothing wrong with ethics and rectitude at the Supreme Court. Judges are ethical and honorable public servants. Its Furthermore, to support any reform legislation now would be to endorse this vicious political attack on the Supreme Court.
The Supreme Court’s Public Information Office declined to comment Thursday.
NYU’s Gilers, who focuses on legal and judicial ethics, traces some of today’s criticisms of court ethics to America’s enduring abortion wars. june decision In Dobbs v. Jackson Women’s Health Org.
“It is difficult for many people to understand that Roe was overturned simply because the composition of the court had changed,” he said. “Why now, after nearly 49 years of Republicans and Democrats endorsing Roe?”
Reversed, in fact, after adding new Trump appointees to the court.
Yet Gilers said the justices’ off-bench behavior and their enduring lack of a formal code of ethics is being properly scrutinized and affects the stature of the court.
The legitimacy of the court has been debated publicly, even among judges, since Dobbs’ ruling.
When the ABA House of Delegates voted on its resolution Monday in New Orleans, an accompanying report said, “The absence of a clearly defined, binding code of conduct for the Court’s judges undermines the Court’s legitimacy. More than that, this absence potentially jeopardizes the legitimacy of all American courts and the American judicial system, given the court’s central role in our federal republic.
The nine judges are covered by a federal law that stipulates that jurists disqualify themselves from a case when their “impartiality can reasonably be questioned,” but they are allowed to resolve complaints. are exempt from federal judicial channels and lack a specific ethics code governing their activities.
So, for example, in 2018, more than 80 complaints were filed against US appeals court judge Brett Kavanaugh, stemming from his tumultuous hearing of his Supreme Court nomination. summarily rejected after the Senate confirmed him as a justice.
U.S. Court of Appeals Judge Timothy Timkovich, who wrote to the Judicial Council rejecting those complaints, cited a 1980 judicial conduct law that excluded the nine justices.
“The allegations contained in the complaints are serious,” he said, “but the Judicial Council is bound by the Act to comply. Lacking statutory authority to do anything else, the complaints must be dismissed as an intervening incident – Justice Supreme Court confirmation of Kavanaugh – has made the complaints no longer eligible for consideration under the Act.
As he introduced the new legislation on Thursday, Sen. Dick Durbin, chairman of the Senate Judiciary Committee, said in a statement that “the Supreme Court of the United States should be the embodiment of fairness.”
The Illinois Democrat said, “Congress must close the inexcusable ‘Supreme Court loophole’ in federal judicial ethics rules by creating and enforcing a code of conduct for Supreme Court justices.”
Among the provisions of the proposed “Supreme Court Ethics Act” are provisions that would require the Judicial Conference of the United States, a policy-making branch of the federal judiciary, to create a code that would apply to judges and separately , direct the Supreme Court itself to appoint an ethics inquiry lawyer to handle public complaints about possible unethical conduct by judges.
In 2011, Roberts explained some of the factors that saved the High Court from strictly relating to reconsideration.
“Judges of the lower court may freely substitute for each other,” Roberts wrote in a recent annual report. “If an appeals court or district court judge recuses from a case, there is another federal judge who can serve in that recused judge’s place. But the Supreme Court consists of nine members who always sit together sit, and if a Judge withdraws from a case, the Court must sit without its full membership. Accordingly, a Justice cannot withdraw from a case for his own convenience or merely to avoid controversy.
He also said that the Supreme Court “does not sit on the judgment of one of its own members as to whether or not to secede when deciding a case.”
At the time of Roberts’ 2011 statement, outside critics were questioning whether Thomas and Kagan should settle the first major dispute over the Affordable Care Act—Thomas because of his wife’s opposition to the 2010 health care law and Kagan because of his former Due to the work of the Obama administration.
Without directly addressing those justices, Roberts wrote, “I have the utmost confidence in the ability of my colleagues to determine when reappointment is warranted. They are jurists of exceptional integrity and experience who have been subjected to rigorous tests of character and fitness.” vetted through the appointment and confirmation process.”
This story has been updated with additional developments.