December 15, 2022

What I Wrote to the House Judiciary Committee about SCOTUS Reform

Russ Feingold President

Last week, the House Judiciary Committee held a hearing entitled, “Undue Influence: Operation Higher Court and Politicking at SCOTUS.” This came in response to recent reporting by the New York Times on an influence campaign conducted by a conservative religious organization to embolden conservative members of the Supreme Court and make them more willing to issue controversial decisions. I provided a written statement to the Committee about ACS’s support for Supreme Court reform and the urgent need for a binding code of ethics at the bare minimum. News this week that Justice Kavanaugh attended a holiday party hosted by the Conservative Political Action Coalition (CPAC) further underscores the need and urgency for a binding code of ethics for our highest court.

Here is an excerpt from my statement to the House Judiciary Committee:

One of the pillars of a democracy is a fair, impartial, and legitimate judiciary. This necessitates a judiciary that is bound by the rule of law, judicial norms, and ethics, and is not committed to a partisan agenda. Unfortunately, our highest federal court does not meet this threshold. The U.S. Supreme Court is in a legitimacy crisis, evident by plummeting public confidence in the face of the Right’s packing of the Court and the resulting partisan lurch of the supermajority’s decisions. Fortunately, there are remedies to this legitimacy crisis – structural and non-structural Supreme Court reform. This includes, but should not be limited to, creating a binding code of ethics for our highest court.

As I go on to explain in the statement:

There are only nine judges in this country who are not bound by a code of ethics. They are the most powerful judges in the country, sitting atop our highest court, to which all other federal courts are subservient. This Court claims the final word on the interpretation of our Constitution and the power to deny constitutional rights with the vote of just five of its members. This awesomely powerful court has no binding code of ethics, and the consequences are abundant.

Recent reporting by the New York Times details how permeable a Supreme Court with no binding code of ethics is to outside influence. Some may dismiss this reporting or claim that the actions documented in it were harmless or at least did not influence the outcomes of cases. This cavalier thinking ignores the Supreme Court’s reliance on public confidence for its legitimacy. Public confidence reflects perception, and the perception of impropriety or corruption, or even uncertainty of its absence, is damaging.

ACS’s position is unequivocal. Structural and non-structural reforms are urgently needed to restore the legitimacy of our highest court. Structural reform includes adding seats to redress the Right’s packing of the Court and ending life tenure in favor of term limits. Non-structural reform includes restricting use of the shadow docket, imposing time constraints on the Senate’s consideration of Supreme Court nominees, and ethics reform. In the statement, I specifically call for a binding code of ethics for the Supreme Court, which must include:

  1.  Restrictions on justices accepting gifts, including travel, access to property and clubs, and other items of              a value over $50.
  2. Robust requirements for financial disclosure
  3. Guidelines for recusals, including situations that require recusal of a justice.

You can read my full statement to the House Judiciary Committee here. We will continue to sound the alarm about the Supreme Court’s existential legitimacy crisis, its devastating impact on our fundamental freedoms, democratic safeguards, and the rule of law, and the need for reform. You can find more information about ACS’s support for Supreme Court reform here.