August 12, 2023

New ethics legislation on the US Supreme Court is critical to preserving the rule of law

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Aleksandra Lasek in Oxford, United Kingdom

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The Supreme Court of the United States, Washington, DC

Picture by: Christopher Bowns | Flickr

The US Congress has finally been heard with its longing to protect the courts from corruption.

The controversial bill, Supreme Court Ethics, Recusal, and Transparency Act of 2023′, requiring the Supreme Court to adopt a binding code of conduct was advanced by a Senate committee on July 20, 2023.

The law requires creation of a code of conduct, and it enables people to file ethical complaints, which are reviewed by randomly selected panels of lower court justices.

The bill would set new regulations for gift and travel registration and enforces recusal standards for gifts, money, and other possible conflicts. While Democrats commended the reforms as a critical need to boost transparency at the conservative-led court, which has long opposed pleas for clarity, there was heavy Republican opposition.

Increasing transparency standards, strengthening the withdrawal process, and requiring Supreme Court justices to adhere to a binding code of conduct is a modest yet essential step needed for Congress. Such reforms are not only within Congress’ constitutional authority to adopt; they are also critical to preserving the rule of law.

The US Code of Conduct refers to practising lawyers, judges, the executive as well as legislative branches. The only exception are the 9 justices on the US Supreme Court.

The Democrats have expressed quite a strong desire to impose an ethics code onto the highest court. One of the Justices, Samuel Alito, strongly claims that Congress is in no position to force a legally binding code of conduct onto the Supreme Court as it would greatly undermine its unique status as the only federal court created by the Constitution.

“I know this is a controversial view, but I’m willing to say it,”Alito said, Speaking with The Wall Street Journal. “No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”

The United States possesses a sovereign system in a form of the highest court having the control over enforcement of the constitutional principles. By virtue, the judiciary branch appears less politically biased and stands as an independent variable to some extent.

In contrast to other countries such as the United Kingdom where the legislative branch has complete and utter power over what is to be considered constitutional. The affiliation between the legislative and judiciary branches is a concept that is always fluctuating and developing as a result of the implementation of public policy.

Many people simplify the case instead of adequately exemplifying all the facts and directions the bill is supposed to go towards.
The desire to impose such legislation by the Congress has nothing to do with the separation of powers or independence of the Court. It is a regulation on the ethical obligation and conduct while off bench.

Considering an ongoing series of ethical scandals involving Supreme Court justices, the bill would take a form of protection against corruption.

It is a reform that is crucial for restoring faith in fairness and impartiality of the high court.

Safeguards against corruption and abuse of power are consistent with the fundamental notion of the long-standing practice of checks and balances in the constitutional structure.

Applying the same sense of protection onto the Supreme Court is not to be considered unconstitutional but rather encouraged.
Justice Anothony Kennedy, associate justice of the Supreme Court of the United States from 1988 until 2018, testified in the congressional hearing that Congress does posses the power to regulate the code of conduct for the Supreme Court back in 2007.

“Checks and balances recognizes that the three branches of government are really engaged in a common enterprise, a common purpose, and we have to have substantial interaction with each other. As Senator Specter mentioned, the jurisdiction of the courts, the rules of venue, the size of the courts, the structure of the courts, the structure of the circuits, is for the legislature to decide, and this is as it should be.”

The record of recent misconduct by Supreme Court judges and members of their families is quite substantial and has been rising for some time now. It includes Justices Clarence Thomas and Samuel Alito’s recurrent failures to disclose costly donations from millionaires with relations to right-wing legal organisations.

Nearly every one of the justices’ unsuccessful attempts to withdraw themselves from cases in which they had personal connections to the litigants, and justices’ spouses financially benefited from law offices and organisations with business before the Court.

It was revealed that both participated in lavish vacations and real-estate deals with top Republican donors. ProPublica’s investigation learned that wealthy donors with financial interests in the Supreme Court had direct access to some of the most ‘powerful judges in the country’.

The lack of transparency and binding code of conduct is fueling the growth of corruption happening off bench.

Legislation presents a solution, ‘The Supreme Court Ethics, Recusal, and Transparency Act of 2023’ would assist in a way of protecting justice and impartiality – core principles of the high court which are vital to preserve.

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Aleksandra Lasek

Human Rights Section Editor

Warsaw, Poland

Born in Krosno, Poland, in 2006, Aleksandra plans to major in political science in international relations with the ambition to acquire a degree in law. For Harbingers’ Magazine, she writes mostly about politics and social sciences with plans to contribute creative writing and poetry as well.

She started as a contributor for Harbingers’ Magazine in 2022. In 2023, she was promoted twice – first to the role of the Human Rights correspondent and, subsequently, to the Human Rights section editor. As the section editor, she commenced her work by organising the Essay on Women’s Rights Competition, which elected six members of the Women’s Rights Newsroom.

Aleksandra’s academic interests cover history, politics, civil rights movements and any word Mary Wollstonecraft wrote. She is also interested in music (her favourite performers being Dominic Fike, MF DOOM, and The Kooks) and anything that includes the voice of Morgan Freeman.

Aleksandra speaks English, Polish, and Spanish.

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