Bloomberg Law
March 30, 2023, 4:56 PM

More Judicial Reforms Are Needed, But Observers Diverge on Scope

Charles Geyh
Charles Geyh
Indiana University Maurer School of Law
William Ross
William Ross
Samford University Cumberland School of Law
Tonja Jacobi
Tonja Jacobi
Emory University School of Law

“To heal itself, the judiciary must heel itself.”

This past week, the federal judiciary closed a loophole that had long permitted judges and justices not to disclose gifts they received in the form of “personal hospitality” from individuals and corporations with interests before the courts. That’s good. It’s a helpful step. But it’s only a start.

In recent years, the Supreme Court and lower federal courts have come under fire for an array of alleged ethical lapses. Justice Clarence Thomas has been criticized for failing to disqualify himself from a case in which his spouse had an interest. Justice Samuel Alito was accused of leaking a draft Supreme Court opinion from years before.

Also consider that the Supreme Court’s draft opinion in the Dobbs case that overturned Roe v. Wade was leaked to the press. Justice Brett Kavanaugh was called out for ethical transgressions associated with his confirmation proceedings, and, more recently, for attending a holiday party hosted by the CPAC chairman.

Then, a Wall Street Journal investigation revealed that over 130 lower federal court judges had failed to disqualify themselves from cases in which they had financial conflicts. And in 2016, Justice Ruth Bader Ginsburg openly criticized the presidential candidacy of Donald Trump, in derogation of the code of conduct applicable to lower court judges.

Public confidence in the Supreme Court has been at an all-time low. Congress has introduced legislation galore to address the myriad problems listed here, and should be credited for stepping up to attempt to fill the regulatory vacuum.

But when Congress gets into the business of managing the conduct of federal judges, it should make us uneasy. Congress lacks the expertise and sensitivity to regulate the courts well. Moreover, regulation can degenerate into micro-management that enables Congress to bend the courts to its will and encroach on the independence of judges to follow the law.

The preferable course is for the courts to hold themselves accountable, but the judiciary has been slow to act. That is why the Judicial Conference’s latest decision to tighten disclosure requirements on the gifts judges receive is welcome news. But more is needed.

Supreme Court justices should end the practice of placing themselves above the law to which all other judges in the US are subject. They should adopt a code of conduct that they agree to follow and establish internal processes to give that code bite.

The Supreme Court and lower courts should reform the recusal process and end the practice of judges grading their own homework by ruling on whether they themselves are too biased or conflicted to preside. The lower courts should take the disciplinary process seriously by defaulting to the norm that judges who violate the code of conduct are subject to discipline.

The Judicial Conference ought to revisit the question of whether judges should be able to escape the consequences of ethical misconduct by resigning or being elevated to the Supreme Court, and if it thinks not, whether a legislative tweak is necessary to give the Conference the authority it needs.

To heal themselves, judges must heel themselves.

Charles Geyh is professor of law at Indiana University Maurer School of Law.

“A code might best enhance public confidence if it prohibited justices from addressing organizations with partisan or ideological agendas.”

US Supreme Court justices are the only federal judges and American jurists who are not subject to any code of ethics, an omission that has exacerbated criticisms of the court that have escalated during recent years, particularly because the court is no longer relatively balanced between liberal and conservative justices.

Legislation pending in Congress would require the court to adopt such a code. Although previous legislation permitted Congress to draft a code, allowing the court to do so would respect separation of powers and judicial independence. The American Bar Association’s House of Delegates last month urged the court to adopt a code.

Although an ethics code would serve an important purpose because it presumably would bolster public confidence in the court’s integrity, a code based on rules that already applies to lower federal judges would have little practical effect, since Chief Justice John Roberts and Justice Elena Kagan have publicly stated that justices already use that code for guidance.

Moreover, Supreme Court justices already are subject to various other forms of ethical accountability, including annual disclosures of various financial investments and prohibitions on the acceptance of gifts that could influence their decisions.

Justices also are included in the federal judicial recusal statute, which requires judges to recuse themselves in any proceeding in which their “impartiality might reasonably be questioned.” Justices often recuse themselves in review of certiorari petitions, and indeed did 19 times between 2015 and 2021 in cases the court had agreed to hear, often because of financial conflict of interest.

Justices, however, are not required to explain the reasons for their recusals. Pending legislation would require justices to explain their reasons for recusal.

This would encourage transparency and could help to enhance public confidence in the court, but it also could be too time-consuming and might require justices to disclose private matters. In some instances, the requirement of public disclosure actually might cause justices to refrain from recusing themselves.

A code of ethics for justices would be most useful if it went beyond the scope of the present ethics code for federal judges.

Since much public criticism of the court arises from perceptions that it’s unduly partisan, a code might best enhance public confidence if it prohibited justices from addressing organizations with partisan or ideological agendas, such as the conservative Federalist Society or liberal American Constitution Society. Such a code also might improve the court’s image if it clarified how partisan and business activities of family members might require recusal.

William Ross is professor of law and ethics at Samford University Cumberland School of Law.

“Supreme Court justices now have to show us where the money is from.”

Sunshine is said to be the best disinfectant.

Justice Clarence Thomas has always been a strong opponent of this principle, challenging requirements for politicians to disclose who they get campaign donations from. But the Supreme Court has faced a lot of controversy recently, leaving it with the lowest approval ratings in its history.

High up on the list of controversies is the hundreds of thousands of dollars received by Ginni Thomas, Thomas’s wife, for consulting services on issues that came before Thomas to rule on at the Court.

Thomas didn’t have to recuse himself from those cases because ethics rules are optional for the justices. And he didn’t have to reveal how much his wife was being paid either.

Now he and his colleagues will have to confess to the public what gifts and cash they are receiving—and from whom.

The body responsible for setting policy for the federal courts, the Judicial Conference, has imposed the new regulations on all judges, and for once this includes the Supreme Court justices. The details are laid out in a letter to Sen. Sheldon Whitehouse, who has been seeking the reform.

The justices have long been subject to annual financial disclosure reports, but those reports previously contained certain loopholes. These loopholes permitted the justices to receive “personal hospitality”—such as dinners, accommodation, travel, gifts, and entertainment—to be paid for by “friends,” without telling the public or parties before the court.

Famously, this exception allowed Justice Antonin Scalia to go on a hunting trip with Vice President Dick Cheney, just weeks before Scalia heard a case challenging Cheney’s choice over who to put on a committee deciding energy policy. (Only oil interests were represented).

Now the justices will have to confess the value of these sometimes substantial gifts.

This is a step in the right direction, but the question remains: will there be more requirements placed on the justices?

Other regulations are being considered. And with good reason.

The Constitution was designed with checks and balances, because humans are not angels, and so we cannot simply trust our leaders to do what is right voluntarily.

This is no less true of judges than of politicians. There are numerous ethical rules that apply to federal judges, but the justices have deemed themselves immune. These include recusal rules, which would have prevented Justice Scalia from hearing Cheney’s case in such proximity to their chummy trip together.

There is no reason we should expect better behavior from those at the top, who do not face external accountability from being reviewed by a higher court or have incentive for good behavior by the chance of being promoted. With lifetime tenure, Supreme Court justices need ethical rules. Financial disclosure is a good start.

But the new rules don’t cover the Ginni Thomas situation, or many others. That still leaves a lot of room for outside influence on the court.

Tonja Jacobi is professor of law at Emory University Law School.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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