Over the past several months, when the topic of judicial reform comes up in discussion, many of us think of the disturbing drama playing out in the Knesset and in the streets of Israel over the controversial “judicial reform” package being promoted by Israel’s governing coalition.
But here at home, there is another judicial reform debate — this one relating to the absence of a formal code of ethics for the justices of the Supreme Court.
In theory, Supreme Court justices are subject to the same financial disclosure rules as other high-level federal officials. But no one other than the justices themselves is empowered to enforce those rules against members of the court. As a result, each justice decides independently how to comply with disclosure rules. Similarly, justices decide how to handle case recusals and the extent to which they may engage in political and other activities.
Based upon several reports of Supreme Court justices either obscuring or omitting key financial details in their disclosure forms, along with overall discomfort with the justices engaging in unaccountable self-regulation on ethical issues, questions have been raised about the wisdom of maintaining the status quo and the need for a formal code of ethics for the Supreme Court.
A few months ago, the American Bar Association’s House of Delegates recommended that the Supreme Court adopt a binding code of ethics for justices similar to the one developed by the Judicial Conference of the United States for other federal judges. And now, Congress is getting involved. Senate Judiciary Committee Chair Dick Durbin (D-Ill.) recently invited Chief Justice John Roberts or a justice of his choice to testify before the Judiciary Committee on the “steady stream of revelations regarding justices falling short of the ethical standards expected of other federal judges and, indeed, of public servants generally.”
Roberts “respectfully” declined the Durbin invitation, citing separation of powers and judicial independence concerns, but noted in his response that there is “a Statement of Ethics Principles and Practices to which all of the current Members of the Supreme Court subscribe.” Durbin’s follow-up questions regarding the Statement of Ethics and other issues have not been answered.
For now, it appears that the Judiciary Committee is reluctant to issue subpoenas to compel testimony from members of the Supreme Court, since such a move would trigger a constitutional confrontation over the separation of powers between the legislature and the judiciary and raise concerns about the independence of the judiciary. But the issue is not going away. It needs to be addressed.
Roberts can avoid a constitutional crisis, protect the independence of the court and take steps to enhance respect and confidence in the Supreme Court by using his position as chair of the Judicial Conference to create a committee, consisting of respected judges, lawyers, academics and ethics experts charged with the establishment of a formal code of conduct for the high court that specifies how the rules will be enforced and by whom.Such a result would respond to mounting concerns about the Supreme Court and obviate the need for congressional involvement. ■