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Supreme Court needs a code of conduct, says judicial ethics expert

SACHA PFEIFFER, HOST:

And on Capitol Hill, U.S. senators are proposing a binding code of ethics for the Supreme Court. That's outlined in a bipartisan bill introduced last week, and it's in response to what some people consider misconduct by the justices. Recent reporting found that Justice Clarence Thomas accepted luxury vacations from a billionaire Republican donor and Justice Neil Gorsuch sold property to the head of a law firm that frequently appears before the court. Charles Geyh is a law professor at Indiana University who focuses on judicial conduct and ethics. Professor Geyh, welcome to ALL THINGS CONSIDERED.

CHARLES GEYH: Good afternoon.

PFEIFFER: The justices have unanimously signed a statement saying that they will voluntarily abide by existing standards that govern lower courts. First question for you - do you feel like that voluntary agreement they've made is sufficient?

GEYH: It is not. I don't think that they have really agreed to bind themselves to the code that the lower court adopts. They are simply saying that they have consulted it in the past. And there's a difference between consulting the code and creating a code for yourself.

PFEIFFER: One of the criticisms I've read about the idea that they would have a code is that, whereas lower court judges could be censured by a panel of fellow judges, the Supreme Court doesn't answer to other courts. So there would have to be some kind of investigative bureaucracy, which could certainly be controversial and potentially politicized.

GEYH: Certainly that's a possibility. My attitude is, for heaven's sake, folks, just adopt a code of conduct the way all other judges have done. But I think that recognizing that an enforcement mechanism of some kind is also desirable - I think it would be constitutional. And the way the bill is drafted, it does not have real teeth. It really calls upon the chief justice to do some reporting. It authorizes investigations, but it doesn't require sanctions and suspensions and so on. I think it would allow for informal mechanisms to run their course. And, you know, my research regarding chief circuit judges around the country is that these informal mechanisms of being able to talk with judges when they run into trouble is really a very effective way of ensuring that judges behave ethically, honorably and impartially.

PFEIFFER: But you just said that the bill as drafted doesn't have real teeth. That makes me wonder, how adequate a safeguard will it really be if it passes?

GEYH: Well, that's a good question, but I think that the drafters are mindful of the limits on the Constitution and creating mechanisms for the Supreme Court that are the same as the mechanisms for the lower courts is problematic only because the Constitution regulates the lower courts and the Supreme Court differently. That said, Congress has already created mechanisms that force the Supreme Court to disqualify itself when its impartiality might be in question. It creates restrictions on the gifts it needs to report. So I think the bill is constitutional, but I understand where going soft on the disciplinary mechanism as a first step here is the wise one.

PFEIFFER: Well, you do seem to be getting at how this could be difficult to police the Supreme Court in a sense because if we are going to have constitutional separation of powers and we can't have the executive or the legislature oversee the judiciary, who's the boss?

GEYH: Our system is premised on the notion that all three branches of government are coequal, and so I have spent my career devoted to the proposition that we do need to respect the independence of the judicial branch. And that does mean something. You know, what irritates me, what makes me sort of angry about the situation is that the lower federal courts are really very good when Congress gets in their grill and starts telling them, you're not doing something right. The Judicial Conference of the United States jumps in with an alternative and says, here's what we can do that can make this better, that respects the - kind of the comedy between branches that we've got. And what the Supreme Court has been - had for the last several years is overtures from Congress saying, adopt a code. And the court has basically come back last week and said, the status quo is fine by us. Go away. And to me, that's just tone-deaf.

PFEIFFER: Do you think that this most recent reporting about, as we said, what many people consider misconduct by the justices is going to make a difference and actually force an ethics code into place?

GEYH: It's a process. And I think it's just important to understand that this is a long-standing process, you know, that in the late '90s, Justice Ginsburg was presiding over cases in which her husband had stock in the parties. We have Justice Scalia a few years later vacationing with the vice president while the vice president has a case pending before him. We've got Scalia and Thomas both being featured speakers at Federalist Society fundraisers, which violated the code of conduct for lower court judges. And we have a litany of events in which the Supreme Court has not been mindful of the code applicable to lower federal courts. The latest is pushing the needle. I think there is now gathering pressure for the court to adopt a code. In my perfect world, the court gets the message and adopts a code and Congress can back off. But that's not been happening to date. The court is basically playing brinksmanship games that I think are unfortunate.

PFEIFFER: That's law professor Charles Geyh of Indiana University. Thank you very much.

GEYH: My pleasure. Transcript provided by NPR, Copyright NPR.

Kai McNamee
Sacha Pfeiffer is a correspondent for NPR's Investigations team and an occasional guest host for some of NPR's national shows.