Rep. Johnson, Sen. Whitehouse Re-Introduce Supreme Court Ethics, Recusal, and Transparency (SCERT) Act
WASHINGTON, D.C. – In an effort to hold the U.S. Supreme Court accountable to the American people, Congressman Hank Johnson (GA-04) today re-introduced his Supreme Court Ethics, Recusal, and Transparency (SCERT) Act. The bill will require justices of the Supreme Court to adopt and follow a code of ethics, creates an accountability mechanism for these ethics by establishing advisory review by appellate court judges, places transparency standards on gifts and travel, codifies recusal standards, and requires the court to disclose lobbying and dark money interests before it.
Sen. Sheldon Whitehouse (RI) introduced the companion bill in the Senate. Congressmen David Cicilline (RI), Jerrold Nadler (NY) and Mike Quigley (IL) are co-leading the legislation in the House.
“This bill is a long time coming,” said Rep. Johnson, ranking member of the Judiciary Subcommittee on Courts. “Many of these changes have been put before Congress in one form or another for the past decade or more. We are seeing the effects of our inaction. The word unprecedented is starting to lose its meaning as we see more and more questionable behavior from justices. And public trust and confidence in the Supreme Court is at an all-time low. By mandating that the Supreme Court develop and adopt a code of ethics and establishing common-sense transparency and recusal standards, this bill would help restore the Court’s reputation and reinforce that none of us — not even Supreme Court Justices — are above the law.”
“There are good reasons Americans are losing confidence in their Supreme Court: special interests are spending millions to try to rig the judiciary in their favor, and the justices continue to shrug off their own self-imposed ethics crises,” said Senator Whitehouse, Chairman of the Senate Judiciary Courts Subcommittee. “Every other major decisionmaker in the federal government is subject to these kinds of ethical guardrails. It’s clearer than ever that it’s time to bring a fair and transparent set of rules—and procedures to enforce the rules—to the highest court.”
“The Supreme Court is one of the nation’s most vital institutions, so people are justifiably shocked when they learn that there is no code of conduct for the Supreme Court, even though there is for every other federal judge and member of Congress,” said Rep. Jerrold Nadler, ranking member of the House Judiciary Committee. “Recent events at the Court—whether it be the unprecedented leak of a draft opinion, speeches given at closed-door events with parties to ongoing cases in front of the Court, or public appearances with political figures—all point to the need for a defined code of ethics. This bill would finally require the Court to do just that: promulgate an ethics code for themselves. No longer would each justice get to pick and choose their ethical obligations without being bound by a single, uniform code.”
“Americans’ trust in the Court is at an all-time low and we need to act decisively to not only restore faith in our judicial system but to also sustain that trust once it is regained,” said Rep. David Cicilline (D-RI), ranking member of the House Judiciary Committee Subcommittee on the Administrative State, Regulatory Reform, and Antitrust. “This loss of trust didn’t happen overnight but has grown out of an increasingly partisan confirmation process that started with Mitch McConnell refusing to give Merrick Garland a hearing or a vote, extends to the clear conflict of interest posed by Ginni Thomas’s work and advocacy, and includes last year’s leak of the extremist anti-choice draft opinion. This bill is an important first step in restoring trust in our judicial system by imposing the type of ethics standard that should have long ago been in place. I’m proud that this bill includes provisions from my Judicial Travel Accountability Act and look forward to passing this bill when it comes to the House floor.”
“The Supreme Court is the highest court in the land, tackling our nation’s most consequential cases,” said Rep. Mike Quigley, co-founder of the Congressional Transparency Caucus. “It is common sense to expect this body to operate ethically with transparency and accountability. It is no secret that trust in our judicial system has drastically deteriorated, a trend that has been exacerbated after the past year’s decisions and scandals. Things must change. By codifying recusal standards, implementing an ethics code, and improving transparency around gifts and travel, we can begin to restore that trust.”
Under the Supreme Court Ethics, Recusal and Transparency Act, there will be:
• Code of conduct: the Supreme Court must adopt a code of conduct for itself after an opportunity for public comment.
• Minimum gift/travel/income disclosure rules: the Justices must adhere to—at minimum—the same gift/travel/income disclosure standards as Members of Congress.
• The Supreme Court must publish on its website all of its ethics rules and procedures, including its code of conduct.
• An investigative board composed of the chief judges of each circuit to review complaints submitted against Supreme Court justices.
• Closure of the loophole in current law that requires complaints against judges to be dismissed once those judges are elevated to the Supreme Court.
Recusal reforms aimed at the recent ethics scandals:
Lobbying on the judge or justice’s behalf: Recusal would be required if a party or affiliate lobbied or spent substantial funds to get the justice/judge confirmed.
Giving the judge or justice income, gifts, or reimbursements: Recusal would be required if the justice/judge or spouse or minor child or a privately held entity under their control received income/gifts/reimbursements from a party or affiliate in the case within 6 years of the judge being assigned to the case.
Duty to know: Imposes a clear duty for the judge/justice to know their and their family’s financial interests could be substantially affected by a case before them.
Duty to notify: Requires the judge/justice to inform the parties of any circumstances that could reasonably require recusal.
Review by other justices and judges: Ensures that the full Court can protect the integrity of its own proceedings by creating a path for full-Court consideration of a recusal motion. For lower courts, ensures that recusal motions can be considered by a randomly selected panel drawn from across the judiciary.
Public notice: Requires short explanations of judges’ recusal decisions to be posted online.
Clarifies that private or sensitive information may be redacted from public explanations of recusal decisions.
Clarifies that judges who are the subject of motions to recuse can offer their views on recusal review panels but may not participate on those panels.
Disclosure requirements:
Disclosure of lobbying, gifts, and payments by parties: Requires the Court to issue rules requiring all parties and amici to list any lobbying or substantial expenditures in support of the justice’s nomination, confirmation, or appointment; and any gifts, income, or reimbursements made to the justices within two years of the start of the proceeding.
Dark money amicus disclosure: Requires parties that file amicus briefs to disclose their major sources of funding and authorizes the courts to strike amicus briefs that would require a judge to recuse.
Supporting organizations: American Humanist Association, Workers Circle, Government Information Watch, Bayard Rustin Liberation Initiative, Demand Progress, Demand Justice, National Council of Jewish Women, Wisconsin Democracy Campaign, Indivisible Northern Nevada, American Atheists, Citizens for Responsibility and Ethics in Washington (CREW), Fix The Court, Common Cause, End Citizens United/Let America Vote, Free Law Project, People’s Parity Project, Take Back the Court Action Fund and Freedom from Religion Foundation.
WHAT THEY ARE SAYING
“The ethical crisis engulfing the Supreme Court threatens to undermine public faith in the entire judicial branch. For an institution whose credibility is its currency, this crisis of confidence is already having disastrous effects with confidence in the Supreme Court sinking to historic lows,” said Debra Perlin, Policy Director at Citizens for Responsibility and Ethics in Washington. “The Supreme Court Ethics, Recusal and Transparency Act is a strong response to this crisis, as it would help rebuild public trust in the judiciary by holding Supreme Court justices to the highest ethical standards, creating clear standards for recusal, and bringing transparency to the judiciary's opaque practices. CREW applauds Sen. Whitehouse and Rep. Johnson for reintroducing this crucial piece of legislation and urges both houses to send it to President Biden’s desk for his signature as swiftly as possible.”
Fix the Court executive director Gabe Roth said: “There's currently no way to file a formal complaint against a Supreme Court justice for violating basic ethics rules — not when they fail to recuse from petitions despite obvious conflicts of interest, nor when they accept lavish gifts and travel, nor when they’re the willing target of a partisan influence campaign. This bill fixes that oversight by creating such a process — and, in focusing on the advisory nature of the process, does so in a way that can function within our constitutional order. I applaud Rep. Johnson and Sen. Whitehouse for this work and for normalizing the view that Supreme Court justices are not infallible because they’re final — rather, they're not infallible, period, and they need the same or similar ethical guardrails that exist in the other branches and in the lower courts.”
Read the bill HERE.
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