Last month, Senator Schiff (D-Calif.) unveiled a three-bill package that would finally bring much needed accountability, transparency, and ethical guardrails to the federal judiciary. These proposals have PEER’s full support. As our nation’s political system grows increasingly beholden to corporate cash, it is imperative that we act to ensure the judiciary remains accountable to the public and uninfluenced by personal financial interests.
You might be surprised, then, to learn that the Supreme Court’s code of ethics is self-enforced. Whether to recuse oneself in a conflict of interest or report gifts is up to the Justice in question. Such lax standards make all the more unsurprising the growing body of evidence that documents Justices presiding over cases in which they hold a financial or personal stake.
These incidents fuel a crisis of trust in a branch intended to be an impartial last resort, where conflicts ought to be settled not by personal interest, but by their merits.
How the Package Works
Each bill in Senator Schiff’s package addresses a gap in judicial accountability. Currently, Executive Branch employees are barred from taking part in decisions in which they hold a financial interest — even inadvertent violations may carry steep penalties. The Judicial Integrity Act would extend these standards to the federal judiciary. Similarly, the Justice is BLIND Act would require Justices and federal judges to place their financial assets into a blind trust, ensuring that neither can profit from their appointments. The last of the three, the Judicial FOIA Expansion Act, would extend to the federal judiciary the transparency requirements that already bind executive agencies under the Freedom of Information Act.
And while the benefits of transparency in our government should be self-evident, one might wonder why PEER, in our efforts to protect public employees and the environment, is stepping into a debate about judicial ethics. To answer that question, we need not look any further than the Roberts Court’s record.
Precedent Overturned
On Monday, June 29th, the Court overturned 90 years of precedent. Releasing its decision in Trump v. Slaughter, the Court gave the President the authority to fire the heads of independent agencies without cause.
90 years of precedent, of federal worker protections, and of vital checks on executive overreach, gone in only a moment.
Only two years prior, the Court’s decision in Loper Bright Enterprises v. Raimondo foreshadowed the Court’s intentions to curtail agency authority and served as evidence of its hostility towards settled law, ending 40 years of deference to reasonable agency interpretations of ambiguous statutory language.
The reason these decisions are so concerning cannot be reduced to our disagreement with them — although we do disagree. Rather, they are concerning because they evidence a distinct enthusiasm in the Roberts Court for rewriting our political system without the passage of any law.
Yet the transparency issues of the Roberts Court extend beyond the mere substance of its rulings; opacity seeps into the very processes by which the Court arrives at them. Increasingly, the Supreme Court has relied on its emergency — or “shadow” — docket to hear consequential cases, forgoing parts of the Court’s traditional process, such as oral arguments and detailed rulings, that are vital to the Court’s credibility and understanding its reasoning.
A Crisis of Public Trust
Trust in the Supreme Court has reached historic lows. Such a crisis of trust threatens the functioning of our judicial system. As a branch of government that is simultaneously unelected, wields significant political power, and yet cannot alone enforce its decisions, public trust in the judiciary is paramount. In its absence, we risk empowering authoritarian presidencies to hear the Court’s decision but decline to enforce it — a concern not without precedent.
That unchecked presidency is far from a distant prophecy. These last few months have seen a flurry of executive orders and administrative actions that are poised to unravel the non-partisan civil service and science-based regulatory system underpinning the health and safety of every American. From efforts to install a government-wide NDA and loyalty oaths in non-partisan federal hiring to EPA’s war on climate regulations, this administration has made its priorities clear; it will accept nothing less than the pillaging of the federal government for corporate and personal gain.
With Congress too divided to adequately restrain this administration’s unilateral expansion of power, the federal judiciary is a linchpin of our nation’s delicate system of checks and balances. A judiciary that wields the public’s trust is vital during these times of tumultuous change and unprecedented money in politics. The public has a right to ensure that judges do not have financial conflicts in the cases they hear and that the judiciary is subject to the same basic transparency laws as the executive branch of government.
Regaining the public’s trust will not be easy. It will require meaningful, deliberate court reform, of which no one solution can achieve alone. Still, Senator Schiff’s proposed legislation is an important start.
Ben Glick is PEER’s Litigation Assistant.