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Congresswoman Eleanor Holmes Norton

Representing the District of Columbia

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As Supreme Court Begins Term, Norton Introduces Resolution Urging Court to Adopt Ethics Guidelines

Oct 8, 2019
Press Release

WASHINGTON, D.C.—Congresswoman Eleanor Holmes Norton (D-DC) today introduced a resolution calling on Supreme Court Justices to make themselves subject to the existing and operative ethical guidelines set out in the Code of Conduct for U.S. Judges or create their own rules.

“Each year, the Supreme Court has the last and final word on the nation’s most important issues, from Brown v. Board of Education, barring state-sponsored racial discrimination, to Obergefell v. Hodges, recognizing the right to marriage equality,” Norton said.  “Their rulings often make the nine justices more powerful than the president and the Congress.  Yet the justices, who do not hesitate in their rulings to opine on the ethics of others, do not submit to even the ethical standards required of other federal judges.  In one instance, Justice Neil Gorsuch gave a speech at the Trump International Hotel, which was involved in litigation alleging violation of the Constitution and which may reach the Supreme Court for decision.  Adopting ethical standards would guard against ethical concerns and would strengthen public trust.  Supreme Court justices, who are unelected and serve lifetime appointments, should avoid even the appearance of being above the law.”

The full text of the resolution follows.

RESOLUTION

Expressing the sense of the House of Representatives that the justices of the United States Supreme Court should make themselves subject to the existing and operative ethics guidelines set out in the Code of Conduct for United States Judges, or should promulgate their own code of conduct.

Whereas section 455 of title 28, United States Code, establishes the circumstances under which any justice, judge, or magistrate judge of the United States shall disqualify himself or herself from a case;

Whereas under chapter 16 of title 28, United States Code (relating to complaints against judges and judicial discipline), the judicial circuits may prescribe rules and procedures for the conduct of proceedings under that chapter, including regarding complaint, investigative, and review procedures for certain decisions of judges and magistrate judges of the United States not to recuse themselves from cases;

Whereas litigants can seek legal recourse through the United States courts to enforce section 455 of title 28, United States Code, and challenge the disposition of the underlying case, and complainants have administrative procedures under chapter 16 of title 28, United States Code, against a judge or magistrate judge of the United States, but there are no comparable enforcement mechanisms against the justices of the United States;

Whereas the Judicial Conference of the United States adopted a Code of Conduct for United States Judges, which uses language identical to the relevant portion of section 455 of title 28, United States Code, that a judge or magistrate judge of the United States must abide by when deciding whether to recuse himself or herself from a case, but the Code does not apply to a justice of the United States Supreme Court;

Whereas justices of the United States Supreme Court are not bound by any written code of conduct;

Whereas justices of the United States Supreme Court each have unreviewable authority to determine whether there is an appearance of bias, conflict of interest, or other ethical justification sufficient for withdrawal from hearing, partaking in deliberations in, or joining in the resolution of, a case or controversy;

Whereas the Federal Judicial Center has concluded that `balancing the duty to decide' with `the duty to disqualify' precludes judges from using recusal as an excuse to shirk their duties by avoiding difficult or unpleasant cases;

Whereas the United States Constitution vests judicial power in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish;

Whereas the separation of powers of the coordinate branches of government, as well as the independence of the judiciary, or the appearance of independence, may be compromised by extensive legislative or executive interference into that branch's functions;

Whereas James Madison argued in Federalist Paper Number 10 that `[n]o man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity'; and

Whereas the United States Supreme Court has acknowledged in Republican Party of Minnesota v. White, and reiterated in Caperton v. A.T. Massey Coal Co., that `[t]he citizen's respect for judgments depends . . . upon the issuing court's absolute probity' and that `[j]udicial integrity is, in consequence, a state interest of the highest order':

Now, therefore, be it

Resolved, That it is the sense of the House of Representatives that the justices of the United States Supreme Court should make themselves subject to the existing and operative ethics guidelines set out in the Code of Conduct for United States Judges, or should promulgate their own code of conduct.

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