The Ethics of our Justices
In recent months, Congressmen have considered Supreme Court reform as a number of controversial events have called into question the ethics which Justices uphold. Chief Justice John G. Roberts and Justice Clarence Thomas’s wives are involved in incidents which critics say compromise their husbands’ ability to remain neutral in their assessment of Supreme Court Cases. Chief Justice Roberts' wife, Jane Sullivan Roberts, recruits lawyers for firms that argue before the Supreme Court repeatedly. In essence, lawyers pay Mrs. Roberts to argue before her husband. Justice’s are subject to the Ethics in Government Act of 1978, which requires the disclosure of their spouse’s source of income, but Chief Justice Roberts has only listed the name of Mrs. Roberts’ employer. Additionally, Chief Justice Roberts has never recused himself due to his wife’s work, despite the conflicting interests that saw her receive payment from lawyers involved in a firm arguing before the Supreme Court. In response to the controversy, a spokesperson for the Supreme Court referenced a Supreme Court advisory opinion which stated that “a judge whose spouse owned and operated a legal or executive recruitment business need not recuse merely because … the spouse made preliminary overtures to recruit attorneys but no contract or employment negotiations resulted.” However, given recent events, the issue is being revisited: Representative Henry Johnson introduced the Supreme Court Ethics, Recusal, and Transparency Act within the House in 2022 which would create laws mandating the disclosure of Justice’s finances.
Justice Thomas’s wife has also potentially compromised the ability for neutrality in the January 6 trials. In September of 2022, text messages between Virginia Thomas and Donald Trump's former chief of staff Mark Meadows revealed her involvement in the January 6th riots and efforts to overturn the 2020 election. By the time these texts were released, the January 6th committee had already appeared before the Supreme Court. Justice Thomas did not recuse himself nor disclose his wife's involvement.
Groups like Fix the Court, which have been advocating for Justices to be held to the same ethical standards as lower court judges, outline recent ethical breaches which should be investigated. Apart from spouses' public involvement in the court system, Justices have accepted a number of gifts from donors which causes conflicts of interest for Justices and questions the integrity of a branch of government that was founded on its neutrality.
Although Justice Elena Kagan stated in 2019 during a congressional budget meeting that Chief Justice Roberts was exploring the idea of an ethics code for the Justices, there has been little headway on the topic. In a recent petition, citizens urged the Senate Judiciary Committee to investigate the Justices and conflict of interests that were previously overlooked. The American Bar Association has stated that “the absence of a clearly articulated, binding code of ethics for the justices of the Court imperils the legitimacy of the Court.” In response, Congress has introduced a multitude of bills in the past two years that would establish a clear code of ethics and a system for holding Supreme Court Justices accountable.
The Supreme Court Ethics Act, which was reintroduced by Senator Christopher Murphy February 9th, not only establishes an ethics code but also “establish[es] an ethics investigations counsel, and require[s] disclosure of recusals.” The Act creates a more defined pathway for filing claims against Justices who violate ethics rules which would be defined in section 964 of title 28’s United States Code. The Act also includes provisions which would be included in the code of conduct. Additionally, the aforementioned Supreme Court Ethics, Recusal, and Transparency Act similarly outlines a complaint process surrounding the Justice’s ethics and actions. These bills reflect the public's growing concern over the lack of accountability for Justice’s actions and the sanctity of the Court in general.
Jacqueline Metzler is a Freshman at Brown University. She is a staff writer for the Brown Undergraduate Law Review and can be contacted at jacqueline_metzler@brown.edu.