Norton Introduces Resolution Calling on Supreme Court to Adopt Ethics Code

Oct 5, 2021
Press Release

WASHINGTON, D.C. — With the start of the Supreme Court’s term yesterday, Congresswoman Eleanor Holmes Norton (D-DC) reintroduced her resolution today calling on the Supreme Court to subject itself to the ethics code that applies to all other federal judges. The Code of Conduct for United States Judges, adopted by the Judicial Conference of the United States, an administrative arm of the federal judiciary chaired by the Chief Justice of the Supreme Court, provides standards for recusals for avoiding various ethics matters that arise in the administration of justice. The Code, however, does not apply to Supreme Court Justices, who have unreviewable authority to determine whether conflicts of interest would undermine their ability to hear and decide a case fairly and without the appearance of bias. The resolution aims to further public integrity and bolster confidence in an institution that in recent years has been criticized concerning issues related to conflicts of interest and whose members have been subject to demands for recusal from cases.

“We cannot afford further erosion of trust in the Supreme Court, which has historically been the arbiter of the most controversial and weighty issues in our country,” Norton said. “My resolution would help the Court eliminate ethics controversies by encouraging it to adopt the same Code that applies to all other federal judges today. Each branch of government has a part in carrying out the nation’s laws, so none is above the law.”      

Norton came to Congress as a tenured law professor at Georgetown University Law School.

 
 
 

RESOLUTION

Expressing the sense of the House of Representatives that the Justices of the 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 Supreme Court;

Whereas Justices of the Supreme Court are not bound by any written code of conduct;

Whereas Justices of the 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 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 Supreme Court has acknowledged in Republican Party of Minnesota v. White, and reiterated in Caperton v. A.T. Massey Coal Co., that ‘‘the citizen’s respect for judgments depends upon the issuing court’s absolute probity’’ and that ‘‘judicial 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 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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