(Bloomberg) -- US President Joe Biden has called on Congress to pass enforceable rules of conduct for justices of the Supreme Court as part of a larger proposal to overhaul the institution by imposing term limits. The court adopted a code of conduct for the first time in November, but it lacks an enforcement mechanism. It took up the code after justices Clarence Thomas and Samuel Alito came under scrutiny for alleged ethical lapses.
What are the accusations against Clarence Thomas?
ProPublica reported in 2023 that Thomas had accepted financial largesse from Texas billionaire Harlan Crow, a Republican donor, that he’d failed to disclose. Among its findings were that Crow paid for at least a part of the private school tuition for Thomas’s grandnephew, who was raised by Thomas and his wife, Ginni. Crow also bought from Thomas’s family the Georgia home that Thomas’s mother lived in, and then spent tens of thousands of dollars making improvements to it. And Crow paid for lavish trips taken by Clarence and Ginni Thomas, using Crow’s private jet.
After the trips were reported, Thomas said he was advised that he didn’t have to report “this sort of personal hospitality from close personal friends.” He added that Crow hadn’t had any business before the Supreme Court, though Bloomberg News later reported that the court in 2005 had declined to hear an appeal from a company that had sued a Crow-affiliated business. Thomas said that in the future he intended to follow the gift-reporting guidelines issued by the Judicial Conference, which makes policy for the federal judiciary.
What about Alito?
ProPublica reported in June 2023 that Justice Alito accepted travel to Alaska on a private jet in 2008 from hedge fund chief Paul Singer, who years later had business before the court. Alito denied any ethical lapses and said he saw no reason to recuse himself from the cases because he wasn’t aware that Singer had an interest in any of them. He also said that at the time he did not have to report the flight on his financial disclosure.
Alito made headlines again in May when the New York Times reported that flags seen carried by then President Donald Trump’s supporters during the Jan. 6 Capitol riot in 2021 were seen flying outside of the justice’s homes in Virginia and New Jersey. Alito blamed his wife for displaying the flags in letters to Democratic lawmakers refusing their calls to recuse himself from cases related to Trump and Jan. 6, which the court decided in its last term.
What ethical rules apply to Supreme Court justices?
When the court for the first time adopted a formal code of conduct in November, the justices said that they’d long had “the equivalent of common law ethics rules” derived from several sources, including the code that applies to other members of the federal judiciary. Like that code, theirs calls for the justices to avoid the “appearance of impropriety,” lays out permissible “extrajudicial activities,” and requires certain financial disclosures.
One major deviation, however, concerns recusal, the withdrawal of a jurist from a case in which he or she has a financial, familial or other type of conflict. Commentary to the code notes that unlike lower court judges, a justice who is recused cannot be substituted by another judge. Much “can be lost when even one Justice does not participate in a particular case,” the commentary says. Therefore, the code emphasizes the justices’ so-called duty to sit and the “time-honored rule” that necessity may require an otherwise disqualified justice to hear a case.
What is Biden’s ethics proposal?
Biden urged Congress to pass enforceable rules of conduct that require justices to disclose gifts, refrain from political activity and recuse themselves from cases presenting conflicts of interest for them or their spouses. It’s highly unlikely the current divided Congress would pass such a bill. And whether any such legislation would be constitutional isn’t clear, because any attempt by Congress to regulate the Supreme Court could be seen as violating the doctrine of separation of powers.
What’s Biden’s proposal on term limits?
Under Biden’s proposal, US presidents would nominate a new justice every two years with each member serving an 18-year term, ensuring at least two appointments during a four-year presidential term. His plan didn’t address how term limits would apply to the current justices. The US Constitution says that justices “hold their office during good behavior,” which has been interpreted to mean that they have lifetime appointments. Justices, like other federal judges, may only be removed through impeachment.
A December 2021 report from a bipartisan commission appointed by Biden identified possible ways to transition to fixed-term appointments, including establishing a staggered schedule for current justices to retire, expanding their ranks temporarily until the “legacy” justices leave the bench, or delaying term limits until the current members vacate their seats.
While some scholars argue that term limits for justices could be adopted by statute, many others say a constitutional amendment would be required. That process is arduous, requiring that three-fourths of the states — or 38 of 50 — vote in favor of the amendment. The Constitution has only been successfully amended 27 times, the last time being in 1992.
--With assistance from Greg Stohr.
©2024 Bloomberg L.P.
