Scholars raised concern Friday about a #MeToo-inspired congressional proposal for a code of ethics for U.S. Supreme Court justices.
Russell Wheeler, a visiting fellow at the Brookings Institution who focuses on U.S. judicial systems, and Charles Gardner Geyh of Indiana University law school, told a House subcommittee that they believed the high court should follow such a protocol.
But they opposed a provision in proposed legislation directing the Judicial Conference of the U.S., which is headed by the Supreme Court chief justice but is comprised of lower court judges, to develop one.
Giving the conference that responsibility would run counter to the statutory governance structure for federal courts that Congress has created, Wheeler said.
Congress has authority under the Constitution to establish a code of conduct for the court itself, but it would be preferable for the justices to develop their own, Geyh said.
Concerns about #MeToo-era sex harassment complaints, like those that forced Judge Alex Kozinski from his seat on the U.S. Court of Appeals for the Ninth Circuit, have placed a greater spotlight on the issue of judicial conduct.
Members of the public are surprised when they learn that the high court isn’t bound by a code of ethics like other courts, said Rep. Hank Johnson, chairman of the Subcommittee on Courts, Intellectual Property and the Internet of the House Judiciary Committee.
The Georgia Democrat introduced the “Supreme Court Ethics Act” in February, which would require the Judicial Conference to issue a code of conduct for Supreme Court justices.
Whether Congress could enforce such a code against the justices is a tough question, Amanda Frost, a professor at American University law school, testified.
Setting up a disciplinary mechanism for justices would be a cure worse than any disease of occasional judicial misconduct, Wheeler said.
But having ethics provisions in place could give public criticism of the court more “bite,” encouraging the justices to comply with them once in place, Frost said.
Johnson said he was heartened by testimony from Justice Elena Kagan that Chief Justice Roberts is considering whether the court should adopt a code of its own.