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The burgeoning controversy surrounding Supreme Court Justice Clarence Thomas and Ginni Thomas’ activism/lobbying is raising difficult questions that do not yet have answers. But just as importantly, the revelations are adding new fuel to efforts on Capitol Hill to change the high court’s ethics rules.
Under the status quo, justices are largely responsible for policing themselves. Whether jurists decide to recuse themselves, for example, is a matter of personal discretion. Justices have a responsibility to hold themselves accountable.
When justices have unimpeachable reputations, and have proven themselves worthy of public trust, few take issue with the court’s self-policing standards. But when justices’ behavior takes a scandalous turn, no one should be surprised when officials start exploring reform measures.
As NBC News reported, those efforts are picking up steam.
Sen. Chris Murphy, D-Conn., and Rep. Hank Johnson, D-Ga., are courting support for the Supreme Court Ethics Act, which would require the creation of a judicial ethics code.
The legislation has picked up a fair amount of support relatively quickly, including 44 co-sponsors in the House and 19 in the Senate. (For now, literally all of the bill’s supporters are Democrats.)
What’s more, this is not the only effort. NBC News’ report added:
Two dozen congressional Democrats, led by Sen. Elizabeth Warren, D-Mass., sent a letter addressed to Thomas and Chief Justice John Roberts calling on Thomas to “promptly recuse himself from any future Supreme Court cases involving efforts to overturn the 2020 election or the January 6th attack on the Capitol.” The letter also calls on Roberts to “commit no later than April 28, 2022, to creating a binding Code of Conduct for the Supreme Court” that includes enforceable standards for recusal.
Democratic leaders appear quite supportive of these efforts. Senate Majority Leader Chuck Schumer, for example, told reporters yesterday, “I think there should be some kind of code of ethics for Supreme Court justices.”
Around the same time, during a closed-door meeting, House Speaker Nancy Pelosi reportedly told her members, “It’s up to an individual justice to decide to recuse himself if his wife is participating in a coup.”
Ouch.
The problem, of course, is what’s likely to happen next — and the likelihood of the status quo remaining unchanged. It’s possible, for example, that justices will soon agree on their own to a binding code of conduct that includes enforceable standards for recusal, but no one seriously expects that to happen anytime soon.
Justices have grown accustomed to self-policing standards, and if the rules are going to change, it will almost certainly fall on Congress to do the heavy lifting.
So perhaps Murphy’s and Johnson’s Supreme Court Ethics Act is the vehicle worth watching? Yes, although it would need considerable bipartisan support to overcome a Republican filibuster, and NBC News’ report added, “One Senate Republican aide said the caucus has ‘zero’ interest in going down that road.”
There’s no reason for this to necessarily be a partisan dispute. Yes, Clarence Thomas has brought a new sense of urgency to the issue with his unfortunate ethical standards, but a new judicial ethics code would apply to jurists regardless of their ideology.
In other words, justices that Republicans don’t like would be required to honor the same ethics rules as justices that Republicans do like. So why not prioritize the integrity of the institution?