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In Jan. 2023, a PDF attachment appeared in my inbox: draft legislation requiring the Supreme Court to establish a code of conduct and create the position of Supreme Court ethics counsel to investigate alleged impropriety among the justices.
The sponsor: Rep. Matt Gaetz (R-Fla.).
The bill was never introduced, but I bring this up to remind readers of a basic fact: there’s nothing inherently partisan about court reform. Improving transparency and accountability in our historically opaque third branch – if done right – would not help one party or another. Instead, reform would result in federal courts across the country, including the Supreme Court, functioning more efficiently, while being led by jurists whose ethical character is rarely in dispute.
Additional proof comes from recent reform proposals that did make it past the hurdle of introduction.
In April 2023, a few weeks after ProPublica released its investigation into the lavish gifts accepted by Justice Clarence Thomas, Sen. Richard Blumenthal (D-Conn.) told MSNBC’s Nicolle Wallace, “I think there ought to be an inspector general … for the judiciary.” Did the senator then start writing IG legislation from scratch? No. He filed a bill that was 99% the same as Sen. Chuck Grassley (R-Iowa), the conservative chairman of the Senate Judiciary Committee, had introduced a half dozen times from 2006 to 2017 that established an IG’s office within the judiciary, and which, per the text, would have the ability to “conduct investigations of alleged” misconduct in the Supreme Court. (The remaining 1% of Blumenthal’s 2024 legislation? A nod to the fact that the justices had adopted a code of conduct in the interim, which an IG could also use as a barometer for ethical conduct.)
Turns out that one of the most obvious solutions to fix the crisis of confidence in Supreme Court ethics already existed – and had support at one time from leaders in both parties.
That’s not all. In 2018, Rep. Darrell Issa (R.-Calif.) introduced legislation that would have required the Supreme Court to abide by a formal code of conduct. Also in his bill was a requirement that the SCOTUS clerk post a “timely notice” of the justices’ recusals “on the website of the Supreme Court, along with an explanation for such recusal.” In 2019, Rep. Ben Cline (R-Va.) and Rep. David Cicilline (D-R.I.) introduced the Judicial Travel Accountability Act to narrow the personal hospitality exemption for judges and justices and require them to file detailed disclosures any time they were reimbursed for a trip, as members of Congress do. Each of these reforms later appeared in legislation championed by the soon-to-be chairman or ranking member of the Judiciary Committee, Sen. Sheldon Whitehouse (D-RI).
There’s even been bipartisan support for more structural reforms. Members of the Senate Judiciary Committee who have supported proposals to end life tenure at the Supreme Court include Whitehouse and Blumenthal but also count Sens. Ted Cruz (R-Tex.) (through judicial retention elections) and Josh Hawley (R-Mo.) among their ranks. Regarding term limits, another Senate Judiciary Committee member, Sen. John Kennedy (R-La.), once told The Hill, “I would sure love to have the debate. I don’t know exactly how I would come down, but it’s certainly worth talking about.”
In spite of the examples above, not to mention the fact that reforms like ending life tenure at SCOTUS poll high on the left and on the right, Democrats and Republicans aren’t “hav[ing] the debate.” Instead, they’re talking past each other, as that very phrase – “court reform” – has become liberal-coded, associated with attempts on the left to rein in, dilute, or even remove justices for perceived jurisprudential errors and ethical missteps.
It doesn’t need to be this way. On balance, court reform – and especially a complaint review process often referred to as “enforceable ethics” – would benefit the justices, conservative and liberal alike. On that, as Justice Elena Kagan told a House panel in July, a framework where misconduct allegations are assessed by a panel of respected senior judges would “make clear that not every accusation [of wrongdoing], not every charge has any [merit] to it.” Nits about the propriety of Jane Roberts’ work, Justice Brett Kavanaugh’s party attendance, or Justice Ketanji Brown Jackson’s Grammys appearance would quickly be dispensed with.
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Indeed, with conservatives winning at the Supreme Court more often than not, it should be conservatives who’d want a court whose legitimacy isn’t so often undermined in the public eye by ethics scandals.
So how has the prospect of court reform become so partisan? To state the obvious, we live in polarized times, and liberals and conservatives’ contrasting views of the court certainly reflect that. Then there’s ProPublica’s investigation of Thomas: if you believe it was overblown (as many Republicans do), you likely view reform efforts not as an effort to make the court more accountable but as a means to denigrate the senior associate justice and his now-ascendant jurisprudence. If you believe the investigation was justified (as many Democrats do), then you’ll likely support reform efforts as a necessary corrective.
What’s more, an increased focus on the big-ticket items on progressives’ wish list, namely court expansion, has arguably poisoned the whole enterprise. Expansion is somewhere between deeply unpopular and barely above water with the American public. And accomplishing this would require several conditions that are nearly impossible to imagine happening at the same time, namely: Democrats win majorities in the House and Senate; a Democrat wins the White House; Senate Democrats end the filibuster; and and at least 218 House Democrats and 51 Senate Democrats support this policy. Because it is the biggest and most controversial reform proposal, however, expansion gets far more ink than non-structural reforms dealing with ethics and disclosures that are less “sexy” but have a far greater chance of passage.
So how to get past this partisan gridlock? Admittedly, reframing court reform as a nonpartisan issue won’t be easy. But there are a few ways to do it.
First off, let’s look to the lower courts. When a district or circuit court judge does something unethical, Democrats and Republicans should join together in condemnation. That happened in the Judge Joshua Kindred context in 2024, where the District of Alaska judge was forced to resign over sexual harassment. Indeed, once Sen. Lisa Murkowski (R-Alaska) spoke out so forcefully against Kindred’s actions, it wasn’t a far leap for her to cosponsor a Sen. Mazie Hirono (D-Hawaii)-led effort to improve anti-harassment and anti-retaliation protections for third-branch staff.
Other successful and near-successful efforts in the lower courts have followed the same formula of bipartisan pairs. In 2021, Sens. Chris Coons (D-Del.) and John Cornyn (R-Tex.) drafted legislation to bring lower court judges (and, thanks to Fix the Court, the justices, as well) under the STOCK Act, requiring their financial disclosures and stock transactions be posted online, which became law the following year.
Bills to remove the paywall blocking public access to lower court filings (i.e., “free PACER’”) led by Sens. Kennedy and Ron Wyden (D-Ore.) and Reps. Issa and Hank Johnson (D-Ga.) have come close to passage; it is the same with legislation to add dozens of badly needly judgeships to overworked U.S. district courts led by Sens. Coons and Todd Young (R-Ind.) and Issa and Johnson. It should be the same for the Supreme Court, regardless of one’s ideological priors.
All of the above may be lower stakes than instituting term limits (though, again, there is nothing inherently partisan about that) or court expansion. But if we want lasting reform – emphasis on lasting – we need to find solutions that have input from, and can benefit, both sides of the political equation. Neither side should have a monopoly – either in principle or practice – on Supreme Court reform.
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