It has been a big moment for court reform. President Biden has proposed a slate of important if vaguely defined reforms, including a new ethics regime for the Supreme Court. Vice President Harris and other Democrats have endorsed that effort. And, when speaking at the Ninth Circuit judicial conference, Justice Elena Kagan argued that the justices’ ethics code should be enforced by a panel of lower court judges selected by the Supreme Court’s Chief Justice. But while these proposals rest on valuable insights, they also encounter serious shortcomings.
First, these proposals leave up in the air whether, or how, the justices can be removed from office based on misconduct. Because the Constitution expressly provides for removal through impeachment, any other attempt to remove a justice from office is legally suspect. Compounding that issue, enforcement by lower court judges may seem at odds with the Constitution’s provision that there be “one supreme Court.” Yet a code of ethics that does not allow for a justice’s removal may be effectively toothless.
Second, Justice Kagan’s suggestion that the enforcers be handpicked by the Chief Justice raises impartiality concerns. While Justice Kagan made clear that she had faith in the integrity of Chief Justice John Roberts, others may doubt that he would select fair-minded arbiters. And there is, of course, the worry that future Chief Justices might themselves be caught up in ethical scandals or otherwise be undeserving of the public’s trust. A more impartial and lasting mechanism of selecting enforcers is warranted.
Finally, any ethics reform must be achievable without invoking the Article V process for promulgating a constitutional amendment. At least for the time being, a constitutional amendment on this topic (or almost any other one) is simply infeasible, owing to its strong supermajority requirements. In our polarized polity, the most that can realistically be hoped for is legislation. Yet legislation must operate within the confines of the Constitution, including the tenure during “good Behaviour” that it affords the justices.
To overcome these difficulties, we propose a solution with two main components. First, a statute should provide that a large council of randomly selected federal judges can hear ethics complaints against individual justices of the Supreme Court. Second, justices should commit to resign from office in the event that the council finds such a serious ethical violation that a justice should no longer hold office. The combination of these reforms would generate non-partisan judicial accountability with teeth.