We Need to Talk About Ethics Reform

Strict Scrutiny

In this installment of the Hot Supreme Court Reform series, host Kate Shaw interviews Gabe Roth, executive director of Fix the Court, to discuss the urgent need for enforceable

Key takeaways

• Gabe Roth argues the Supreme Court is the most powerful yet least accountable branch, currently operating without an inbox for public complaints or an independent ethics enforcer.
• Justice Alito's past claim that Congress cannot bind justices with laws is contradicted by their voluntary compliance with annual financial disclosure requirements since 1981.

Main topics

• Supreme Court ethics reform
• Judicial accountability mechanisms

Notable quotes

"if you're going to have a court that has arrogated to itself so much power... They should follow some of the same rules that other branches of government and even the lower court judges have to follow."

Conclusion

The episode underscores that Supreme Court ethics reform must be pursued

Transcript preview

Speaker 4 (0:00) Strict Scrutiny is brought to you by Americans United for Separation of Church and State. Guess what, folks? It's back to school season. And this year, 5 million children across Texas are going to be greeted by, wait for it, the Ten Commandments in their classrooms. Texas politicians passed a law requiring the Ten Commandments to be displayed in every public school classroom, forcing their religion on every kid in those schools. 28 families in Texas, supported by Americans United for Separation of Church and State, are taking the fight to the Supreme Court. And we need you to amplify their voices before the Supreme Court gets its hands on this case. Speaker 2 (0:34) They're going to go up, but... We're going to fight to get him taken down. Speaker 4 (0:40) That was Texas public school parent Ted Lowe. Ted and Rebecca Lowe are an interfaith couple. Ted is Jewish and Rebecca is Christian, and their kids are in Texas public schools. The story that they tell in this video is moving, and we hope that everyone hears it and shares it. Because there is a human cost to Christian nationalist policies like these Ten Commandments laws and the decisions that the Supreme Court hands down. You can visit au.org forward slash 10C to learn more about this case and how you can help join the fight to protect church-state separation. Speaker 2 (1:20) No jokes. If men are against two beautiful ladies like this, they're going to have the last word. Speaker 1 (1:28) She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Speaker 5 (1:58) Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm Kate Shaw, your lone host for this edition of our special bonus series, Hot Supreme Court Reform September. And for this installment of our series, I'm delighted to be joined by returning guest Gabe Roth, who's the founder and executive director of Fix the Court, which for over a decade has been focused on monomaniacally, you might even say. And I say that with admiration and appreciation on reforming the Supreme Court and making it more democratically accountable. Gabe, welcome back to Strict Scrutiny. Speaker 3 (2:31) Thanks so much for having me back, Kate. Speaker 5 (2:32) So as you know, Gabe, and listeners by now should know, we are spending September and just a sliver of October doing weekly deep dives on various SCOTUS reform proposals. We've talked about term limits and court expansion and jurisdiction stripping. And if you haven't listened to those episodes, please make sure to go back and do that. They're great conversations. But for today, I want to focus on Supreme Court ethics, although maybe at the end of the conversation, we'll sort of broaden things out a bit. So, Gabe. Supreme Court ethics are something very much in your wheelhouse. This has been something that you've focused on for quite some time. And maybe before we talk about reform proposals, let's take a couple minutes and just identify the problem. So how would you describe the problem with the Supreme Court when it comes to ethics? Speaker 3 (3:15) I think if you just, yeah, broaden it out, Fix the Court has, since we launched in 2014, has called the Supreme Court the most powerful, least accountable part. of our federal government. And I think that's even more so now than it was when we started in 2014. And so I think the problem is that if we see something wrong, if we see some ethical malfeasance, there's really no way to fix it because there is no impeachment and removal. That's just never going to happen. And the Supreme Court, as has been articulated by some of the justices, believes, I think, inaccurately, that it is above some of the laws that Congress passes. So, you know, if a justice, just to give an example, is accepting lavish gifts and going on all these free trips paid for by someone who clearly has a view on how the Supreme Court should be ruling in cases, there's at least currently little that we, the public, and the public through its representatives in Congress can do to sort of tamp that down. So I think there just needs to be stronger rules of the road. Maybe some different personalities of the court down the line as well. But I think just as a sort of basic level, the way I like to think about it is if you're going to have a court that has arrogated to itself so much power, right? You and I were in college when Bush-Ugur came out. And so the idea that the Supreme Court decides an election, I mean, the Supreme Court came down with a major election case just last night. We're recording this on the 15th. So on the 14th, they came out with a major election ruling. deciding many aspects of all our elections, the Supreme Court is going to have this much power to decide life or death and health care and voting and gerrymandering and elections and health care access and so much more. They should follow some of the same rules that other branches of government and even the lower court judges have to follow. So that's sort of like the big picture is like, you know, there's definitely a problem. And I think it's given all the power the justices have. They should be looking elsewhere in government and following some of those rules. Speaker 5 (5:13) Yeah. So this is an institution with enormous power that it has asserted for itself over everything from elections, immigration, abortion and bodily integrity, public health, the environment. I mean, the list goes on. And they... Right now are subject to no meaningful accountability mechanisms short of impeachment, which under the Constitution is virtually impossible in a highly polarized moment where you need super majorities in the Senate to actually remove someone for office pursuant to the impeachment provisions of the Constitution. So enormous public power, enormous public power for life and very little accountability. Speaker 5 (5:52) So it's not only important that I think that the Supreme Court, like other government officials, be subject to some kind of ethics rules. In some ways, it's the most important branch to subject to binding ethics rules because they don't stand for regular election. And they're not hauled before Congress for regular oversight like members of the executive branch, right? There just aren't the same kind of checks and accountability mechanisms. And so it seems really important that they be subject. to binding ethics rules. And you alluded to this a little bit, but Gabe, will you say a little bit more, and I think this is very much part of the problem, about what some of the justices seem to think about the applicability of the ethics rules that constrain all other members of public office to them. Like, how do they communicate their positions on whether they're bound at all by the laws that do exist? Speaker 3 (6:41) I mean, I think you're teeing me up for the Justice Alito interview in the Wall Street Journal three years ago, and I'm happy to elaborate on that. But basically, he told the Wall Street Journal editorial board that Congress can't make laws that bind the justices for any sort of reason, which is super ironic because Justice Alito, the entire 36 years he served in the federal judiciary, has filed and submitted an annual financial disclosure report, which is required. under 5 U.S.C. 13101 and following that he file. The justices actually did it voluntarily after the Fortas scandal in the late 60s, early 70s. But then after Watergate in 78, Congress passed the Ethics and Government Act requiring these disclosures that went into effect in 81. Lower court judges actually sued so they wouldn't have to file annual financial disclosures because they were thought to be too invasive. They lost in the court below. SCOTUS denied cert. in, I think, January of 1981. And then since then, the justices, all nine of them, every single year have filed an annual financial disclosure report. That is 100 % a creation of Congress, the fact that they do it every year. And same thing with the 2,400 lower court judges. So this idea that they can't be, you know, the Congress can't bind them to do anything is kind of ridiculous and disproven by their own. annual activities with the filing of the disclosures. Speaker 5 (8:03) Okay. Yes. So absolutely, they have appeared to acquiesce. The lower courts, I think, have stopped contesting that they can be bound and required to file annual financial disclosure reports. The SCOTUS members as well filed these annual reports, although we can talk a little bit about the sometimes Speaker 4 (8:19) - Speaker 5 (8:19) Oh, they omit things. Oh, yeah. That's a problem. Yeah, Speaker 3 (8:22) sort of Speaker 5 (8:22) spotty practice. But at least they do, I think, through their conduct, seem to be acquiescence in the- acquiescing rather in the applicability of these mandatory filing requirements to them. And yet there are, I think, not so. Alito told The Wall Street Journal that basically Congress doesn't have any authority to regulate justices of the Supreme Court. But it's also the case, I think, that they have suggested that they are deciding. to file these annual financial disclosure reports, but maybe just as a matter of grace and discretion as opposed to compliance with some binding directive that Congress has the authority to subject them to. So in 2023, following this wave of, I think, really blockbuster pieces, largely by ProPublica, revealing the degree to which several justices have been the beneficiaries of this largesse from kind of billionaire friends and benefactors, the justices announced for the first time that they were setting forth a code of conduct for the justices of the Supreme Court, which they said basically just formalized and announced to the public the practices the justices already followed. And the filing of the annual financial disclosure reports are sort of on the list. But it almost sort of suggests that the willingness to file these annual reports is something that the justices... are deciding to abide by, but only, again, because they have decided to do so rather than because Congress has enforced upon them this binding obligation. And so I kind of think that the filing of the annual financial disclosure reports is important, but the things they have said and communicated about why they are filing in some ways only underscores the problem, which is that they have announced that they are the kind of ultimate arbiters of the ethics rules that they... are going to follow. And that, I think, evinces a fundamental misunderstanding of these core separation of powers principles, which is that every branch is subject to checks from other branches. That's pretty central to the design of the Constitution. And yet, this Supreme Court seems to believe that it alone sort of stands outside of meaningful checks. And maybe it's going to decide to. do some things that will promote a modicum of transparency, but, you know, it could decide differently tomorrow if it wanted to. So do you basically agree with that assessment? Speaker 3 (10:47) Yeah. So, yeah, that harkens back to a William Rehnquist-authored memo in 1991 when the Ethics Reform Act was coming into effect. And that talked about, OK, there are these new gift rules that Congress is putting on itself and on the judiciary. We make no statement on the constitutionality of these new gift rules. But because we're nice guys and gals, we're going to follow them. So that was that was this memo. You can link to it on FixTheCourt.com. I'm sure we have it there. But but yeah, it is it was the justice saying, OK, you know, we have these new gift rules. We have this disclosure rules. We're going to we're going to follow them. I mean, the thing is that if they don't file a disclosure, if they lie in the disclosure, the attorney general can bring a civil action against. The individual, if typically it has to go through the judicial conference and the judicial conference, which is the policymaking body, the judiciary is run by Chief Justice Roberts and as a body runs interference on ethics issues. There's a judge in Georgia that had sex in her chambers and lied about it and she should be impeached in the judicial conference. Their committee on judicial misconduct could have done something and they didn't. The judicial council there didn't do anything. So the. infrastructure of the judiciary itself, it's not just the court, it sort of insulates the justices from accountability. And I think what you were implying is that it might come to a head, right? If we have an enforceable ethics mechanism that is passed by a future Congress, if we have a gift ban rule, if we have... certain rules about prediction markets or amicus filings or lobbying at the court, what have you, that might end up being decided by a Supreme Court. And what is the Supreme Court going to do? It doesn't mean I don't think we should try to get, convince our member of Congress to pass new ethics rules for the court. And I have a whole host of them that, you know, we can talk about. But,