Senate Democrats, led by Sen. Sheldon Whitehouse (D-RI), have introduced a bill by which Supreme Court justices can be disqualified, or otherwise punished, based on a yet-to-be-crafted and fluid “code of conduct.”
Dubbed the “Supreme Court Ethics, Recusal, and Transparency Act of 2023,” S. 359 says its intent is “To amend title 28, United States Code, to provide for a code of conduct for justices of the Supreme Court of the United States, and for other purposes.”
S. 359 would require the Supreme Court to establish a subjective code of conduct for justices and law clerks and set disclosure requirements for gifts, travel, and income received by them.
Additionally, the bill would also require the Court to establish procedures for anyone who wishes to file ethics complaints against justices and for the adjudication of those complaints by a panel of circuit court judges.
Republicans, like Sen. Lyndsay Graham (R-S.C.) have condemned the bill as an attack on the current conservative-majority Supreme Court by liberals upset with recent rulings on issues, such as abortion.
Not only does the bill mandate a code of “conduct,” which would be highly subject to interpretation, it also gives the reining Supreme Court and Judicial Conference the ability to modify what constitutes proper conduct, as they see fit:
SEC. 2. Code of conduct for the Supreme Court of the United States.
- In general.—Chapter 16 of title 28, United States Code, is amended by adding at the end the following:
“SECTION 365. Codes of conduct
“(a) Justices.—Not later than 180 days after the date of enactment of this section, the Supreme Court of the United States shall, after appropriate public notice and opportunity for comment in accordance with section 2071, issue a code of conduct for the justices of the Supreme Court.
“(b) Other judges.—Not later than 180 days after the date of enactment of this section, the Judicial Conference of the United States shall, after appropriate public notice and opportunity for comment in accordance with section 2071, issue a code of conduct for the judges of the courts of appeals, the district courts (including bankruptcy judges and magistrate judges), and the Court of International Trade.
“(c) Modification.—The Supreme Court of the United States and the Judicial Conference may modify the applicable codes of conduct under this section after giving appropriate public notice and opportunity for comment in accordance with section 2071.”
Individuals would be able to file complaints against justices alleging, not just that they violated the actual code of conduct, but also if the complainant believes the justice “has otherwise engaged in conduct that undermines the integrity of the Supreme Court of the United States.”
“Upon receipt or identification of a complaint under subsection (a), the Supreme Court of the United States shall refer such complaint to a judicial investigation panel, which shall be composed of a panel of 5 judges selected randomly from among the chief judge of each circuit of the United States,” the bill says.
If the justice’s conduct is found wanting, the panel can then “present to the Supreme Court of the United States any findings and recommendations for necessary and appropriate action by the Supreme Court, including dismissal of the complaint, disciplinary actions, or changes to Supreme Court rules or procedures.”
S. 359 also give the panel subpoena power and enables it to launch a lengthy, full-blown inquisition, complete with hearings and sworn testimony:
“(3) POWERS.—In conducting any investigation under this section, the judicial investigation panel may hold hearings, take sworn testimony, issue subpoenas ad testificandum and subpoenas duces tecum, and make necessary and appropriate orders in the exercise of its authority.”
In particular, the process may be used to disqualify a judge from a particular proceeding:
“(a) Motion for disqualification.—If a justice, judge, magistrate judge, or bankruptcy judge of the United States is required to be disqualified from a proceeding under any provision of Federal law, a party to the proceeding may file a timely motion for disqualification, accompanied by a certificate of good faith and an affidavit alleging facts sufficient to show that disqualification of the justice, judge, magistrate judge, or bankruptcy judge is so required.”
The bill was introduced by a partisan cohort of 12 Democrats:
- Sen. Sheldon Whitehouse (D-RI),
- Sen. Richard Blumenthal (D-CT),
- Sen. Jeff Merkley (D-OR),
- Sen. Cory Booker (D-NJ),
- Sen. Kirsten Gillibrand (D-NJ),
- Sen. Jack Reed (D-RI),
- Sen. Dianne Feinstein (D-Calif.),
- Sen. Mark Warner (D-VA),
- Sen. Bernie Sanders (D/I-VT),
- Sen. Ed Markey (D-IL),
- Sen. Dick Durbin (D-Mass.), and
- Sen. Mazi Hirono (D-HI)
On July 20, the Senate Judiciary Committee voted 11-10 in favor of the bill, with all Democrats voting for it and every Republican voting against it.