Jason Mazzone is the Albert E. Jenner, Jr. Professor of Law and the director of the Program in Constitutional Theory, History, and Law at the College of Law at the University of Illinois Urbana-Champaign. Mazzone spoke with News Bureau business and law editor Phil Ciciora about restoring public trust in the U.S. Supreme Court.
Why are U.S. Supreme Court ethics rules seemingly so toothless? What is the point of having strict disclosure rules and ethical standards if justices can ignore them?
The U.S. Supreme Court does not have a formal set of ethical rules. The Code of Conduct for United States Judges – the ethical canons designed to promote the integrity and independence of the federal judiciary – does not apply to Supreme Court justices. That’s because the body that created the Code of Conduct, the Judicial Conference of the United States, lacks power to regulate the Supreme Court.
When faced with ethical questions, the justices do consult the code along with other sources for guidance, but they have never adopted their own formal code of conduct.
Separately, federal statutes impose certain ethical requirements on all federal judges, including Supreme Court justices. For example, the Ethics in Government Act requires the justices to comply with financial disclosure rules that apply to other high-level federal officials and employees.
The Judicial Conference is responsible for administering these rules with respect to judges and ensuring their compliance. In March, the relevant committee of the Judicial Conference issued new regulations on reporting personal hospitality. But that brings us back to the question of whether the Judicial Conference can regulate the Supreme Court. In the past, the court has taken the position that its compliance is voluntary.
Do the latest the revelations involving Justice Clarence Thomas and unreported real estate transactions rise to the level that the U.S. Department of Justice ought to get involved? Can Congress investigate?
Given that Justice Thomas is reportedly filing an amended disclosure form to reflect the transaction, it is extremely unlikely DOJ would insert itself. It is possible the Senate Judiciary Committee will hold hearings and seek to call Justice Thomas as a witness. He might simply refuse to show up.
Importantly, Congress lacks power to conduct criminal investigations outside of the context of impeachment. At the end of the day, that’s the check the Constitution gives on the behavior of the justices. Of course, with the House controlled by Republicans, who believe Democrats haven’t stopped treating Justice Thomas unfairly since his confirmation hearing, the odds of impeachment are zero.
The most likely scenario is the court itself will announce some new or clarified standards the justices will follow.
Even before the most recent Clarence Thomas revelations the public was clamoring for reforming the U.S. Supreme Court. Term limits for justices; placing an age cap on justices; balancing the court politically and expanding the number of justices were all popular reform ideas. Which, if any, are likely to have any traction?
I don’t see much likelihood of any major reform in the structure of the court anytime soon. The main challenge is designing and implementing a reform that doesn’t just look like a partisan effort to shape the court’s decisions. Even if everyone thinks in principle that the court should have more members or they should serve for fixed terms, nobody wants to give the president from the other party additional opportunities to appoint new justices. If one party controls Congress and the White House, and decides to add seats to the court, you can be sure the other side will add more seats when it is in power.
And other proposals to regulate the court, including term limits, might be held unconstitutional by the court itself.
What does Chief Justice John Roberts need to do to restore public trust in the court? Even more ethics reform or something else?
I don’t know that the chief justice has a lot of public relations tools. The main issue is the perception that the Supreme Court is just another branch of government and the justices decide issues based on their political inclinations. That perception is driven by media reports that focus on a small number of hot-button cases the court decides and that lack any real sophistication about the decisions.
A lot of commentary this past term was dreadful, especially on the Dobbs decision, which overturned Roe v. Wade and Planned Parenthood v. Casey, and on the Bruen decision, the Second Amendment case invalidating a New York regulation of concealed carry.
Unfortunately, some of the bad commentary is from law professors weighing in on issues on which they lack expertise or failing to get beyond misleading soundbites. You can’t understand the work of the court as a whole if you think it’s all just politics.
Given the tumult of the past decade or so, what are court historians likely to make of Chief Justice John Roberts’ court?
It’s too soon to tell. We’re still making sense of the John Marshall court.
One guess is that there will be no single story. The Roberts court has required states to extend marriage rights to same-sex couples and permitted states to criminalize abortion. It’s been strongly committed to protecting religious liberty and free speech but largely skeptical of federal courts intervening in state criminal processes to protect rights of defendants. It has embraced originalism – the notion that the meaning of a constitutional provision is what an ordinary person would have understood by the provision at the time of ratification – but it doesn’t use originalism consistently.
The Supreme Court looms large in American life but it actually decides fewer cases than at any time in history.