PJoe Biden, a resident signed Friday’s law to increase financial disclosure for Supreme Court justices as well as federal judges. Experts describe this move by legal professionals as small but significant reform in a period when trust in federal judiciary has fallen at all levels.
The new law, the Courthouse Ethics and Transparency Act, mandates the creation of an online database where the public can search federal judges’ and Supreme Court justices’ financial disclosures. The law also requires that justices and judges follow the same financial disclosure rules that Congress. They must file transaction reports for all securities transactions worth over $1,000 within 45 days. It states that the database should be available online in 180 days after its enactment, and all subsequent disclosures must be made within 90 days.
“The Courthouse Ethics and Transparency Act is a small step, but an important one, in the long-belated effort to reduce financial conflicts of interest that compromise the integrity of federal judges, including Supreme Court Justices,” Harvard Law professor Laurence H. Tribe tells TIME. “But the most dangerous conflicts are those arising from partisan politics, and this law would do nothing at all to curb those.”
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This bipartisan reform is part of an ongoing, long-term effort to reform the federal judiciary. After a shocking leak of an opinion draft, which showed that the Supreme Court was poised to repeal the Constitution right to access abortions as it is enshrined in the Constitution, leftist efforts were intensified in recent weeks. Roe v. Wade (The court’s final opinion is expected in June.) This legislation comes as Democrats are calling for Supreme Court Justice Clarence Thomas’s resignation from any cases involving the January 6th rebellion. The move follows texts from the Washington Post that revealed Thomas’ wife Ginni, an activist of conservatives, asked Mark Meadows, then White House chief of staff, to reverse the results of 2020 elections.
The Supreme Court is the nation’s only judge not subject to an ethics code. Democrats introduced legislation in both the House of Representatives that would impose a code of conduct and raise standards regarding when justices and judges must resign due to a conflict of interests.
“There’s been more action on judicial ethics in the last few months than there’s been in the last 40 years,” says Gabe Roth, the executive director of the court reform advocacy group Fix the Court, which helped advise on the crafting the new law.
Which ethics rules apply to Supreme Court justices?
Each year, judges and justices must file financial disclosure reports. The problem is that the judiciary is often several years behind in releasing the disclosure reports of the 2,400-plus lower court judges, and doesn’t release them online, says Roth. New law expands the range of financial disclosures justices and judges must make as well as making it easier to access that information.
Following the passing of the Wall Street JournalReports in September indicated that 130 federal judge had broken U.S. law, judicial ethics and overseen court cases in which companies or their relatives owned stock. Federal judges were found to have improperly failed disqualify from 685 court cases between 2010 and 2010. In his year-end report in December, Chief Justice John Roberts said the violations found by the Journal were mostly “isolated” and “unintentional,” but said that collectively the federal judiciary’s “ethics training programs need to be more rigorous.” The bill passed through Congress with a rare showing of bipartisanship this winter, passing the House and Senate by a voice vote.
“Litigants cannot find the information that they need to avoid these conflicts,” says U.S. Rep. Deborah Ross, a Democrat from North Carolina, who sponsored the bill in the House. “And judges, because of the way they report and the lack of periodic reporting, don’t hold themselves accountable to avoiding conflicts.” Now, if a lawyer heads to court, Ross tells TIME, they can look up a judge’s financial disclosures in an online database to determine for themselves if they have a conflict.
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Kermit Roosevelt, a professor of law at University of Pennsylvania, says the new law can be seen “as a test case to see if Congress can in fact, regulate [jurists’] behavior after they become Supreme Court justices.” It’s usually up to the individual justices to recuse themselves, he explains. It could be easier for the public, thanks to the online database and increased disclosure requirements, to check if justices have been following the law. “It’s a very unclear situation, and this might bring some clarity to it,” he says.
Stephen Gillers, a professor at NYU School of Law, says that in Justice Roberts’ year-end report back in 2011, he questioned whether Congress has the power to impose such requirements on Supreme Court justices at all, but added that they must comply with them anyway. “It will be interesting to see if any of the justices balk at the new requirements and what happens if they do,” Gillers says.
Judicial reform is a slow and long road
After calls for broader reforms of the Supreme Court dominated the Democratic presidential primary, President Joe Biden issued an executive order in April 2021 establishing a commission of legal experts to provide analysis of the “principal arguments” for and against—“including an appraisal of the merits and legality”—of various proposed reforms, such as changing the size and composition of the court or imposing term limits on justices. Some progressive supporters believed the reform commission could offer their opinion. The commissioners didn’t take positions on the controversial issues. Although Democrats introduced legislation in both the Senate and the House that would limit the term of justices’ terms, they were not adopted.
Caroline Fredrickson, a senior fellow at the Brennan Center for Justice who served as the president of the progressive American Constitution Society from 2009 to 2019, calls the Courthouse Ethics and Transparency Act is a “start.” Tribe, Roosevelt, and Fredrickson all served on Biden’s reform commission.
“There is obviously much more to be done to ensure meaningful judicial reform — and Congress continues to pursue that objective,” Fredrickson says. “But it is good to see some progress now as we try to ensure further improvements in transparency, ethics, and fair treatment for staff.”
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