Congress Could Mandate Ethics or Justices Could Be Subject to Term Limits
A succession of stories about ethical lapses by U.S. Supreme Court justices has stirred Congress to consider extending ethics rules to the high court. It also prompted the Brennan Center for Justice to call for Supreme Court justice term limits.
The Ethics in Government Act of 1978 already requires justices to file annual financial disclosure forms, the same as senior executive branch officials and Members of Congress. As former White House ethics lawyer Richard W. Painter points out, Congress could require the Court to hire an ethics lawyer to advise justices and an inspector general to investigate alleged ethical breaches.
In an op-ed, Painter wrote, “The Supreme Court cannot be the only branch of government without accountability to the other two. Just because the justices hold themselves to a lower ethical standard does not mean the public does. Reform must come, or Americans’ confidence in the court will plunge still further.”
From 2005 to 2007, Painter screened potential Republican presidential Supreme Court nominees for compliance with ethics rules. He screened Judge Samuel Alito of the 3rd Circuit Court of Appeals and Judge John Roberts of the District of Columbia Circuit. He prepped them for their confirmation hearings, focusing on questions they would face on ethics.
“Both confirmation hearings – Roberts’ in 2005, and Alito’s in 2006 – were almost entirely free of controversy over judicial ethics,” Painter recalls. “Now, 17 years later, I must ask: What happened? My question is not about any one justice but about the entire court.”
Judicial Term Limits
The Brennan Center remedy for judicial ethics shortcomings takes a different tack. It proposes replacing lifetime Supreme Court appointments with staggered 18-year judicial terms. Under the plan, a new justice would be appointed every two years.
Citing a “recent cascade of ethics scandals” that has eroded public trust in the Court, the Brennan Center says, “there are growing calls for reform, with proposals ranging from an ethics code to expanding the Court to stripping its jurisdiction. One of the most popular options would also be among the most transformative – establishing 18-year terms for justices.”
Regular turnover would align the Court with evolving values of the American public, according to a Brennan Center report. Under this concept, each President could only appoint two justices per four-year term. Justices who serve for 18 year would advance to senior justice status, a role that could facilitate administration of the Court and have an experienced jurist available to hear cases in the event of justice recusals, which become more common as ethical issues gain more public attention.
Staggered terms, regularized presidential appointments and fresh faces would better reflect “the evolving views and composition of the electorate” and ends the growing perception of justices in “an elite and unaccountable bubble for decades”.
“The Supreme Court cannot be the only branch of government without accountability.”
Evolving Supreme Court Role
Alexander Hamilton described the Supreme Court as the “least dangerous branch of government”. The First Chief Justice, John Jay, left the Court after five years, saying it lacked “energy, weight, and dignity.” It wasn’t until 1803 that the Court under Chief Justice John Marshall asserted the power of judicial review. Fifty years later, the Court issued a ruling in Dred Scott v. Sandford that barred Congress from freeing slaves in federal territory.
Port-Civil War reconstruction gave rise to a more active Court. As the federal and state governments took on more administration, the Supreme Court became more active. More recently, advocates and opponents of various causes have viewed the Court as a target to win what they couldn’t achieve in legislation or to overturn a precedent such as the right to an abortion.
Like the overall population, justices tend to live longer – the average tenure of current justices is 26 years – a span of more than six presidential terms. A justice confirmed at age 50 could legitimately be expected to serve 30 to 35 years.
Retirements tend to be timed to ensure the sitting President who appoint a successor is of the same party. The congressional confirmation process has become more circus than proving ground. Nominees have to pre-qualify with important interest groups to get on recommendation lists handed to Presidents. Dark money contributions support nominations. And nominees are coached to hedge their answers.
Winning Back Public Trust
Creating an inspector general or limiting judicial terms won’t necessarily end partisanship or win back waning public trust. Neither will stonewalling a tide of investigative stories about lavish, unreported vacations hosted by billionaires with cases before the Court or unacknowledged profit-making activities by judicial spouses.
It’s worth noting, the U.S. Supreme Court’s lifetime appointments are unique among major democracies including Germany, France, Spain, Ireland and New Zealand. Australia, Canada and the United Kingdom have discarded unlimited terms for limited ones. Forty-seven states impose term limits on their supreme court justices. Two states with term limits have a mandatory retirement age. U.S. bankruptcy and magistrate judges serve with fixed terms.
There is a precedent for a senior justice model. Former Justice David Souter has sat on the First Circuit and heard more than 500 cases. Former Justice Sandra Day O’Connor heard cases at the appellate level until her retirement.
In the face of recent awkward disclosures, Chief Justice John Roberts insists the Court can and should handle its own ethics. It’s not clear what, if any, reforms Roberts is pushing for behind the Court’s curtain of secrecy.
Painter’s observation is cutting: “Keep in mind these justices interpret far more technical terms in federal statutes to decide when they do and do not apply to the rest of us. Americans would have more confidence in the Court if justices could at least get their own financial disclosure forms right.”