The Supreme Court Needs An Ethics Panel

The Supreme Court is in the midst of a legitimacy crisis of its own making, after years of reports about sitting justices secretly traveling with millionaire and billionaire friends and other inappropriate behavior. In order to address the crisis, Chief Justice John Roberts should begin the process of implementing an ethics reference panel, according to a letter sent today to the chief justice by CREW President Noah Bookbinder and Judge Jeremy Fogel.

In response to the public's falling confidence in both the Supreme Court and the judicial system, the Court implemented a Code of Conduct that outlines ethical guidelines for justices to follow while on the bench. While the Code of Conduct is a positive step, more must be done to introduce real oversight. The panel proposed by CREW and Judge Fogel would consist of retired federal judges, who would provide the justices with confidential advice as to recusals and other significant ethical questions. It would also submit an annual report indicating the number of motions referred and advisory opinions provided at the end of each year, adding a key layer of accountability to the recusal process. In addition to the letter, CREW and Judge Fogel also sent the Court proposed language that could be incorporated into the Code of Conduct to establish the ethics reference panel.

Both CREW and Judge Fogel expressed their concerns that right now, limitations within the Code of Conduct, including its lack of an oversight mechanism, would hinder both its efficacy and its impact on the public's view of the Court. But taking the steps to establish an ethics reference panel would contribute significantly to rebuilding public trust and confidence in the Court. Drawing upon the experience, expertise and reputation of respected retired judges is a realistic and practical solution.

The letter outlines how a proposed ethics panel, with members appointed by the Supreme Court, would provide the justices with confidential advice concerning motions for disqualification and compliance with relevant laws, rules, and ethical standards, including the Court's Code of Conduct. It would also allow for litigants before the court to file a certified motion to disqualify a justice when they believe that a "Justice's impartiality might reasonably be questioned" because of alleged personal bias, prior involvement as legal counsel or financial conflict of interest.

Although the Supreme Court has expressed concerns in the past about how an outside oversight mechanism could complicate the separation of powers and judicial independence, an ethics reference panel would represent a meaningful form of impartial oversight that respects the Court's unique role in our constitutional structure.