“Threats or inquiries of impeachment as a means of regulating the conduct of Supreme Court justices have had varying effects,” the memo said. Just one justice in the nation’s history has been impeached by the House, Samuel Chase in 1804. He was not convicted by the Senate. In 1969, Justice Abe Fortas resigned over an impeachment threat. The current crop of Republican justices pretty much thumb their nose at the idea of ethics, in contrast to the newest justice-designate, Ketanji Brown Jackson, who has preemptively recused herself from an affirmative action case before she’s even been officially seated on the court.
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The memo makes it clear that this hearing is about the Thomases and the increasing calls for action “following the reporting about text messages between the spouse of an associate justice and the then-White House Chief of Staff.”
“The Supreme Court has long operated as though it were above the law. But, Justice Clarence Thomas’ refusal to recuse himself from cases surrounding January 6th, despite his wife’s involvement, raises serious ethical—and legal—alarm bells,” vice chair of the subcommittee Rep. Mondaire Jones (D-NY), said ahead of the hearing. “The need for strong, enforceable ethics laws is clearer than ever. We have to do more to hold the Court accountable and restore public trust through a binding code of ethics and recusal.”
“Recent reports that the text messages of a justice’s spouse urging the overturning of a free and fair election may have been at issue in a case in front the Supreme Court—but that the justice did not recuse himself from the case—is just the latest and particularly egregious example in an unfortunately long list of illustrations as to why Supreme Court justices need to follow a formal code of ethics,” Johnson told The Hill. “I have been calling for this sort of reform for years, and I am encouraged to see a large, bipartisan majority of the public in favor of this long overdue legislation.”
Republicans, and particularly Senate Republicans, are unlikely to agree because it’s their justices behaving badly. It is, however, important for Democrats to keep pushing that point and to keep up the drumbeat for reform. The threat of some kind of action from Congress—a SCOTUS code of ethics, court expansion, impeachment—is at this point the only leverage that exists against the rogue Supreme Court majority.
The legislation they will pass Wednesday (a slightly different version passed 422-4 in December) will help some toward that effort. It also demonstrates that even the most hardcore partisan Republicans—in this case the bill’s sponsor, Sen. John Cornyn—recognize that there has to be at least the gloss of accountability for the Supreme Court. The bill toughens financial disclosure requirements for federal judges, including Supreme Court justices. They will have to make financial holdings and stock trades publicly available online, in the interest of disclosing conflicts of interest that would warrant judges recusing themselves from related cases.
As it currently stands, the parties involved in a case can request to see the judge’s financial disclosures, as can members of the public, but the judges themselves get to decide how much information they release and when. They have sole discretion in redacting information and can take all the time they want to fulfill requests.
The legislation is a result of a report last fall in the Wall Street Journal that found more than 130 judges broke the law by hearing cases in which they had a financial interest instead of recusing themselves. The Journal found 685 lawsuits that were decided by judges with a financial stake, with the potential fallout of hundreds of cases being overruled.
When the Journal alerted the judges to these violations, “56 of the judges […] directed court clerks to notify parties in 329 lawsuits that they should have recused themselves. That means new judges might be assigned, potentially upending rulings.” Most of the judges gave lame excuses or played dumb. “I had no idea that I had an interest in any of these companies in what was a most modest retirement account,” said Judge Timothy Batten Sr. of the U.S. District Court for the Northern District of Georgia, who owned JPMorgan Chase stock and ruled favorably for the bank in several cases.
Under this legislation, everyone in the judiciary branch will have to follow disclosure requirements like those that apply to lawmakers, reporting within 45 days all stock trades of more than $1,000. The Administrative Office of the U.S. Courts will have to create an online database, searchable and publicly accessible, of judicial financial disclosure forms and will have to get those forms into the database within 90 days from when they’re filed. The new law will apply to Supreme Court justices as well as federal appellate, district court, bankruptcy, and magistrate judges. The database has to be online within six months of President Joe Biden signing the bill.
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