In the wake of recent controversies and apparent ethical lapses at the Supreme Court, the justices have now agreed to abide by a “code of conduct.” But while this new code outlines laudable principles, it conspicuously lacks any enforcement mechanism. We suggest that the justices rectify that shortcoming and, in the process, solidify the federal judiciary’s commitment to ethical behavior. In brief, the justices should have to resign if a bipartisan group of federal judges so requests.
In general, efforts to reform the Court confront two major challenges. First, they must avoid partisan gamesmanship. Our polarized politics will gin up many complaints against the justices, and most will be meritless or manipulative. The justices need a principled way to dispose of these flimsy claims. Second, reform should have bite. Ethical principles can garner public respect only if flagrant transgressions generate consequences. And judges, like the rest of us, are far more likely to pay attention when rules are enforceable.
The Constitution itself provides an enforcement mechanism: any federal judge can be removed from office through impeachment. But impeachment requires separate action by both houses of Congress, including conviction in the Senate by a two-thirds vote. And impeachment is available only for “high crimes and misdemeanors,” which may not encompass serious ethical lapses. Relying on impeachment therefore guarantees that judicial ethics are underenforced.
Impeachment’s shortcomings have only grown more severe. In the past, professional norms have disciplined the third branch. In 1969, for instance, Justice Abe Fortas was shamed into retirement after a series of judicial ethics scandals. Most significantly, Fortas was paid $20,000 by a businessman who was under investigation by the Department of Justice. Even though Fortas returned the money and recused from the businessman’s case, widespread criticism helped bring about his resignation.
Today, by contrast, it is easy to imagine a justice refusing to quit, no matter what. Professional norms have attenuated, and political polarization has created strong partisan allegiances around each justice. These changes in legal culture also undermine the effectiveness of impeachment. If even a minority party is determined to keep a justice in office, it can block the two-thirds vote required for removal. Reform could occur through a constitutional amendment—but that is perhaps the one mode of reform even less politically feasible than impeachment.
We propose another way. First, Congress should create a judicial ethics council with partisan balance and a supermajority voting requirement. Second, federal judges and justices should commit to resign if the council so recommends. This proposal enables the judiciary to police itself, thereby enhancing its public legitimacy while staving off undue interference from the political branches.
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