The 21st Century Courts Act would help restore public confidence in the judiciary

In a good first step toward depoliticizing the U.S. Supreme Court, Sen. Sheldon Whitehouse (D-R.I.) and Rep. Hank Johnson (D-Ga.) recently introduced the 21st Century Courts Act of 2022 setting out procedural reforms that ought to attract bipartisan support. Although the Act’s co-sponsors so far are all Democrats, its two key provisions have no political implications, and there is no reason it cannot eventually be endorsed by Republicans.  

As has now become well-known, the U.S. Supreme Court is the only court in the United States that is not covered by a written code of ethics. Some version of the American Bar Association’s Model Code of Judicial Conduct has been formally adopted in every state, and by the lower federal courts. Chief Justice John Roberts has attempted to explain why the Supreme Court doesn’t need a code of conduct, but his reasoning – that “every Justice seeks to follow high ethical standards” – is unpersuasive. The other state and federal judges surely strive to follow ethical standards, yet they are all covered by written codes addressing issues such as political advocacy, charitable fundraising, accepting gifts or loans, commenting on legal controversies or participation in sponsored educational programs.

The 21st Century Courts Act would not impose specific rules on the Supreme Court. It simply requires that the court, “after appropriate public notice and opportunity for comment, issue a code of conduct for the justices” within 180 days after passage of the Act. The justices themselves would have full authority to determine the scope, specificity and discrete provisions of their code, whether adapting an existing model or writing it from scratch.

As the Act makes clear, the purpose of requiring a Supreme Court code is not to impose unwelcome restraints on the justices, but rather to give the public explicit notice of the standards to which the justices hold themselves. Given that public confidence in the judiciary is at an historic low, a clear articulation of ethical aspirations would enhance transparency and bolster respect for the institution.

Appearing before a House of Representatives committee in 2019, Justice Elena Kagan said that Chief Justice Roberts was already “studying the question” of adoption of a code, which was “something that’s being thought very seriously about.” Over three years later, it should not be difficult for the court to comply with the Act’s 180-day deadline.

There is nothing about this measure for Republicans to dislike. The Court’s current 6-3 conservative majority ensures that an eventual code will not have a theoretically liberal bias, if such a thing were even possible. And ethical lapses of the sort a code would address do not follow party lines. Although there is a current controversy over the political activities of Justice Clarence Thomas’s wife, calls for a Supreme Court ethics code long predate that criticism. (I raised it in a 2005 article in The American Lawyer.)

It was not so long ago that Justice Ruth Bader Ginsburg dug her own ethical hole. In the heat of the 2016 election, Justice Ginsburg repeatedly expressed her opposition to then-candidate Donald Trump. Such overtly political statements would have been prohibited by the code of conduct for the lower federal courts, but there was no such provision applicable to the Supreme Court. Ginsburg eventually apologized for what she called her “ill-advised comments,” but she never acknowledged that her political foray had been ethically improper for a sitting justice.

The second major provision of the 21st Century Courts Act deals with procedures for recusal. It has been the Supreme Court’s “historic practice” to leave recusal decisions solely to the discretion of each individual justice. No other U.S. judges have that privilege. Some courts routinely refer recusal motions to other judges, and all save Supreme Court justices are subject to appeal. This results in an untenable situation in which the most sensitive personal decisions – regarding not only actual bias, but also, under the relevant federal statute, even the appearance of partiality – to the person least likely to exercise objective judgment.

The 21st Century Courts Act solves this problem by constituting the entire Supreme Court as a “reviewing panel for a motion seeking to disqualify a justice.” Individual justices, of course, would remain free to proactively recuse themselves whenever they see fit, but a party’s actual motion, if “accompanied by a certificate of good faith and an affidavit alleging facts sufficient” to support disqualification, would be referred to the full court, as are other procedural motions.

In addition, the Act requires the court to provide an “explanation of each reason for the disqualification ruling,” for or against. The justices now almost never explain their recusal decisions – either disqualifying themselves or sitting in cases when their participation has been questioned – leaving observers to guess about their reasoning. Written recusal opinions have been issued less often than once a decade, and never by the full court, meaning that there are virtually no coherent precedents for the circumstances warranting a SCOTUS justice’s disqualification.

Once again, there is no political valence to the Act’s provisions. A liberal justice would be just as likely to encounter a recusal motion as a conservative, and, as currently constituted, a Supreme Court reviewing panel would always have a conservative majority. Republican strict constructionists might well note that the Constitution vests the judicial power in “one Supreme Court,” not in each of the justices acting individually.

The 21st Century Courts Act would be a major step in much needed court reform. It deserves bipartisan support.

Steven Lubet is the Williams Memorial Professor at the Northwestern University Pritzker School of Law. His most recent book is “The Trials of Rasmea Odeh: How a Palestinian Guerrilla Gained and Lost U.S. Citizenship.”

Tags calls for Clarence Thomas recusal court reform Hank Johnson judiciary recusal Ruth Bader Ginsburg Sheldon Whitehouse Supreme Court U.S. Supreme Court

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