A Long, Slow Journey Toward More Judicial Transparency

Over a decade ago, Chief Justice John G. Roberts Jr. assured the public that members of the U.S. Supreme Court do in fact consult the Code of Judicial Conduct when assessing their ethical obligations.

The high court uses the code much the way the lower courts do: as guidance, he said.

Roberts made the statements in his 2011 Year-End Report on the Federal Judiciary to address questions around whether the Judicial Conference’s Code of Conduct should apply to the high court.

But those questions persist, and The Washington Free Beacon added fuel to the fire Monday when it ran an interview with Justice Clarence Thomas’ wife, Ginni, about attending the rally that led to the Jan. 6, 2021, attack on the Capitol.

Thomas didn’t recuse himself—and was the only justice who dissented—when the court last December heard and rejected Donald Trump’s request to withhold records sought by the House select committee responsible for investigating the attack.

Ginni Thomas told the conservative online news publication that she doesn’t discuss cases with her husband until the opinions are public, and that “even then, our discussions have always been very general and limited to public information.”

Law

Although the justices aren’t subject to the Judicial Conference’s code of conduct, they are subject to 28 U.S.C. §455. The statute directs judges to recuse themselves in specified situations, including financial conflicts of interest and any proceeding in which their “impartiality may be reasonably questioned.”

Although parties can waive disqualification under the latter prong following full disclosure, parties can’t waive disqualification triggered by one of the specifically listed circumstances.

The situation is different for the Supreme Court, of course. A justice’s decision not to recuse isn’t reviewable, and a justice who decides to recuse can’t be replaced.

The average number of recusals per term at the cert. stage over the last six terms was 193, according to the draft final report prepared by the Presidential Commission on the Supreme Court of the United States.

The two primary reasons for recusal, according to the report, were that the justice was involved in the lawsuit as a lower court judge or solicitor general, and stock ownership, according to the report.

The justices don’t have to provide an explanation when they recuse, but one can typically be inferred from public records.

Nor do the justices don’t have to make their financial disclosures publicly available, although they are usually requested by interested organizations—Fix the Court, for example—and published.

The same can’t be said for lower court judges. But that’s changing.

Financial Conflicts

The Judicial Conference adopted transparency measures on Tuesday that will streamline access to judges’ financial disclosure records by automating access.

It also says that a new financial disclosure system “that will include features needed for filing as well as for redacting and releasing financial disclosure reports” is in development, and that judges will need to sign a conflict screening certification statement twice annually.

Related legislative proposals don’t require enhanced screening procedures but would go farther to make the records widely available.

Nearly identical versions of bills to amend the Ethics in Government Act of 1978 to make financial disclosure records for judicial officers publicly available in a searchable online database have passed in both the House and Senate.

Similar bills proposed in recent years have been given limited attention, but those came before The Wall Street Journal published its September 2021 story revealing that 131 federal judges improperly heard 685 court cases between 2010 and 2018 as a result of prohibited financial conflicts.

And the findings likely understate the problem, as only the parties named in the case caption were cross-referenced with the financial disclosures.

According to updates to the story, as of March 1, 140 judges have instructed their clerks to advise parties in 822 lawsuits that they should have recused, and some cases have been reopened.

In 2017, Free Law Project requested from the Judiciary’s Financial Disclosure Office all legal disclosures that were publicly available. As of October of last year, it had received disclosure information for 2011 through 2018, but was still waiting for disclosures for more recent years.

The information that has been produced can be accessed on Courtlistener.com. The information is searchable, making it easy to vet open and recently closed cases to determine whether the presiding judges have or had a disqualifying financial interest.

This feature appeared in this week’s Bloomberg Law—Litigation newsletter. Bloomberg Law subscribers may sign up here.