Top Judicial Ethics and Oversight Moments in Congress in 2023

Bombshell reporting about US Supreme Court justices accepting lavish gifts made judicial ethics a focus for congressional Democrats in 2023.

Democratic efforts to force a code of ethics—and increase transparency across the judiciary—had largely languished even before the justices adopted their own conduct standard in November following mounting pressure.

Still, 2023 has been “one of the most significant years ever” for judicial ethics, said Virginia Canter, chief ethics counsel at Citizens for Responsibility and Ethics in Washington, an accountability nonprofit.

“We still don’t know how it’s going to play out. The conflicts of interest that have been identified are unprecedented,” Canter said.

Judicial Ethics

Congressional Democrats proposed a number of judicial ethics bills, including a measure (S. 1908) from Sen. Elizabeth Warren (D-Mass.) banning judges from trading stocks and another by Sen. Sheldon Whitehouse (D-RI) (S. 3096) proposing term limits on the high court.

The one that made it the furthest was the Supreme Court Ethics, Recusal, and Transparency Act (S. 359), which advanced out of the Senate Judiciary Committee in July.

That legislation would require the Supreme Court to adopt a binding code of conduct and rules over when gifts must be disclosed, as well as establish a panel of judges to investigate potential violations.

Senate Judiciary Committee Chair Richard Durbin (D-Ill.), who also serves as majority whip, said passing this legislation is still a priority for next year, and that he isn’t concerned that the Supreme Court’s adoption of a code would jeopardize traction on his own ethics bill.

“The code of ethics at the Supreme Court that they released, as I said, is nothing new,” Durbin said in December. He explained the high court’s voluntarily adopted code “does not include necessary disclosure and enforcement.”

Regardless, the ethics and transparency act’s traction in Congress likely contributed to the public pressure on the justices that led to the voluntary code, said Gabe Roth, executive director of non-profit judicial ethics watchdog Fix the Court. “I think it’s better that they have a code than that they don’t.”

Senate Subpoenas

Senate Judiciary Committee Democrats voted in November to subpoena conservative judicial activist Leonard Leo and and GOP megadonor Harlan Crow, in a move that escalated Democrats’ investigation into reported undisclosed gifts to Supreme Court Justices Clarence Thomas and Samuel Alito.

The vote sparked outrage from committee Republicans, who had tried to delay the subpoena proceedings with nearly 200 proposed amendments. But Durbin shut down their efforts and authorized the subpoenas anyway, prompting Republicans on the committee to walk out and boycott the vote.

If the two prominent conservatives refuse to comply with the committee’s document requests, the full Senate would need to vote to enforce the subpoena civilly, which Republicans would be expected to filibuster.

Sen. Chuck Grassley (R-Iowa), a senior member of the Judiciary Committee, criticized Democrats on the Senate floor in December for what he described as “ill-advised and really unacceptable conduct” when they blocked his party’s amendments.

Judge Shopping

Lawmakers in both parties proposed bills this year aimed at curbing the practice of filing suits in courts perceived to be friendly, in order to enact policy change nationwide.

Advocates on both sides of the political spectrum have gone to federal district courts—sometimes selecting courts they see as favorable to their arguments—to stop Trump and Biden administration policies nationwide.

In January 2023, Rep. Andy Biggs (R-Ariz.) proposed a bill (H.R. 89) that would prohibit single federal courts from issuing nationwide injunctions that halt policies from taking effect. The proposed legislation mirrors a bill first proposed by former Rep. Bob Goodlatte (R-Va.) in 2018.

Democrats in the House and Senate proposed companion bills (H.R. 3652, S. 1758) in May that would bar any single federal district judge from issuing a nationwide injunction. Instead, federal district courts could only block challenged policies nationwide if the issue is heard by a panel of three judges.

Other bills include Sen. Mazie Hirono’s (D-Hawaii) plan (S. 1265) to only allow the DC district court to issue nationwide injunctions, and a proposal (H.R. 3163) from Rep. Mikie Sherrill (D-N.J.) that would block single-judge divisions of federal district courts from handing down nationwide injunctions.

Republican-led states and conservative groups challenging the Biden administration have filed litigation in the Northern District of Texas’ Amarillo division, where Trump appointee Matthew Kacsmaryk is the only sitting judge.

Rulings from Kacsmaryk have blocked the Biden administration from rescinding Trump-era asylum restrictions and limited the distribution of mifepristone, used in medical abortions, nationwide.