Congress, in recent years, has abdicated its oversight role when it comes to the courts — particularly the highest court in the land. Court watchers believe this neglect has helped encourage Supreme Court justices such as Clarence Thomas to disregard any sense of propriety, as the string of revelations about Thomas’s slipshod approach to ethics has shown.
A new bill from Sens. Angus King (I-Maine) and Lisa Murkowski (R-Alaska) poses a fresh test to lawmakers: In the wake of the uproar over Thomas, will they find the will to do even cursory oversight, if only to restore public confidence in our highest judicial institution as it careens from one legitimacy crisis to the next?
The King-Murkowski bill would require the Supreme Court to create its own code of conduct for justices, which already exists for other federal judges. It would also require the court to publish that code, appoint someone to hear complaints about potential violations and mandate an annual report on such investigations and actions taken in response.
In other words, this bill would require the court to impose an ethical code upon itself. Congress would not determine what that code would be or levy punishments; it would merely require that the court engage in meaningful self-policing and that it be visible to the public.
That seems minimal after ProPublica revealed that Thomas enjoyed years of luxury trips from a billionaire benefactor without disclosing them, as apparently required by law. Thomas also reportedly didn’t disclose more than $100,000 in real estate sales to that billionaire, and some income disclosures Thomas has made were marred by sloppy bookkeeping.
Talk of imposing specific rules on justices while also mandating an enforcement mechanism regularly draws criticism that it would violate the Constitution’s separation of powers. The King-Murkowski proposal appears designed to circumvent that objection. By requiring the court to set its own code, Congress would merely set forth rules it must follow, something that Congress already does with, say, recusal requirements. It would be hard to argue this violates the separation of powers.
“The issue is not whether the justices can be bound by rules,” law professor Stephen Vladeck, author of a Substack about the court, told me. “The issue is what happens when they break them.” The proposal does not give anyone outside the court any enforcement power, Vladeck added, meaning it only does “exactly what Congress has clear constitutional authority to do.”
By requiring the court to clearly state when self-imposed rules have been violated and to reveal what disciplinary action it took, the proposal would remain largely faithful to the oft-praised principle that the court’s own internal pressures should maintain its standards. But it also would give the public a clear glimpse into those inner workings and give lawmakers more information about any violations, enabling Congress to act on its own with clearly defined powers such as impeachment.
“This seems to be striking the exact right balance,” Vladeck said.
One could argue that this wouldn’t go far enough. Over two dozen Democrats have co-sponsored a measure that would require the Judicial Conference of the United States to create an ethics code for the court and appoint counsel to run investigations, policing the court from the outside.
But even so, the King-Murkowski proposal, if it passed, might compel the court to adopt an ethical code commensurate with that imposed on other federal judges, lest it call its legitimacy into question even further.
To be sure, it’s hard to imagine the proposal passing. Democrats are often skittish about exercising oversight on the judiciary. Republicans view any talk of ethics reform as an assault on their grand project of taking over the courts.
But recall that a wide bipartisan majority backed fixes to the Electoral Count Act. Occasionally, reforms happen if it can be sold as merely shoring up the integrity of institutions and doesn’t trigger negative partisanship.
This Supreme Court reform is similar. If lawmakers can’t support requiring the court to police itself, what can they support? As congressional scholar Josh Chafetz told me, “if there’s any Supreme Court ethics bill that can pass the Senate, it would be this.”
A deeper principle is at stake. As Dahlia Lithwick and Mark Joseph Stern write for Slate, Chief Justice John G. Roberts Jr. continues to insist the court can police itself entirely, even in the wake of these revelations.
Congress, then, should act because it would constitute the people’s representatives taking steps to shore up the court’s legitimacy in a way it will not do for itself. Not acting sends a message to the people that their representatives do not have this power to act on their behalf — that the Supreme Court is beyond accountability.
“The judiciary needs to be more subject than it is now to the political branches,” Samuel Moyn, a Yale professor and court-reform advocate, told me. “It is long past time for Congress to recall that the Constitution itself gives it authority and responsibility to ensure the judiciary does its job.”
If not now, when? At a minimum, a bipartisan push in this direction should compel lawmakers who are not willing to take even these modest steps to justify their inaction.
