It is unclear if Supreme Court justices will have to comply with new regulations requiring members of the federal judiciary to publicly disclose more information about personal hospitality, gifts, and benefits they receive from outside sources, lawyers told The Epoch Times.
Supreme Court justices have said they voluntarily comply with the official code of conduct, but it is not clear that they are required to do so. Although they are members of the federal judiciary, they enjoy a level of independence that the rest of the federal judiciary does not. This is because the Supreme Court enjoys a special status because it was created by the U.S. Constitution, as opposed to Congress. Legal experts say this means that only the Supreme Court can regulate the Supreme Court.
The new regulations, which took effect March 14, were issued by a committee of the Judicial Conference of the United States, the policymaking body for the federal courts. The problem is that the Judicial Conference was created by Congress, not the Supreme Court.
The existence of the rules only came to light when The Washington Post reported March 28 that the new regulations apply to “Supreme Court justices and all federal judges,” an assertion disputed by legal experts who spoke with The Epoch Times.
Roslynn Mauskopf, a U.S. district court judge who is director of the Administrative Office of the United States Courts, sent a letter (pdf) to Sen. Sheldon Whitehouse (D-R.I.) on March 23 that outlined the policy changes. Whitehouse chairs the Senate Judiciary Committee’s panel on federal courts.
But Mauskopf’s letter does not specifically mention the Supreme Court or its justices.
The Epoch Times reached out for comment to the Office of Legislative Affairs at the Administrative Office but had not received a reply as of press time.
Lawmakers like the left-wing Whitehouse, an outspoken critic of the conservative majority on the Supreme Court, and activists have been pressing for more stringent ethics guidelines for the high court for years, arguing the justices should have to follow ethics rules that more closely resemble those followed by the legislative and executive branches.
They argue that justices whose spouses are involved in political activism, like Justice Clarence Thomas, whose wife, Ginni Thomas, a supporter of former President Donald Trump, is active in conservative politics, should have to recuse themselves from involvement in cases related to that activism. Despite pressure, the justice declined to recuse himself from the various challenges to the disputed 2020 presidential election that made it to the court.
While the new rules do not give ethics activists all that they want, such as new recusal guidelines, they do require federal judges to declare more information about gifts than was previously required.
An overnight stay at a personal vacation home owned by a friend will continue to be exempt from disclosure. But judges will be required to disclose when they are allowed free stays at commercial properties such as hotels and resorts and when they travel by private jet.
The Epoch Times reached out to Whitehouse’s communications director, Meaghan McCabe, but had not received a reply as of press time.
But Whitehouse told The Washington Post that the new regulations represent a “little, but real victory” that closes a loophole that left “open an enormous avenue to real mischief” by permitting “free, secret holidays orchestrated by one of the many interests seeking to influence the court.”
Left-wing ethics activists were particularly incensed when the late Justice Antonin Scalia, a conservative, flew on Air Force Two at the invitation of then-Vice President Dick Cheney to a hunting expedition in Louisiana. In 2004, environmentalists demanded that Scalia recuse himself from a case involving Cheney. Scalia refused, writing a memo saying he did not believe his impartiality “can reasonably be questioned.” Scalia also publicly disclosed taking upwards of 200 subsidized trips over a decade, often to speak to students or legal organizations.
Attorney J. Christian Adams, president of the Public Interest Legal Foundation (PILF), said he doubts the new ethics regulations apply to the Supreme Court.
“I think there is a fair chance they are unconstitutional,” Adams told The Epoch Times by email.
“Congressional oversight of the judicial branch in the Constitution appears in three places,” he said.
“First, Congress has the power of the purse to appropriate money. But Congress may not even reduce the salary of judges according to the Constitution. Second, Congress has the power to create inferior courts. The Supreme Court is created by the Constitution itself. And third, Congress can impeach. The Constitution does not give Congress the power to regulate the Supreme Court’s behavior,” Adams said.
The Supreme Court could take it upon itself to refuse to follow the regulations or it could strike them down if a lawsuit on the subject came before it, he said.
“Another branch of government cannot regulate the Supreme Court except in the two ways outlined in the Constitution,” Adams said.
It doesn’t matter if Congress is acting directly or if it delegates its authority to another body, he added.
Veteran Supreme Court observer Curt Levey, president of the conservative Committee for Justice, also questioned the ability of the Judicial Conference to regulate the conduct of Supreme Court justices.
“The Supreme Court can voluntarily follow this, but they certainly don’t have the right to impose it on them,” Levey told The Epoch Times in an interview.
“I’m not sure what the left would be celebrating unless the left wants there to be stricter rules for lower court judges, but that’s not the focus of the left. They want stricter ethics for the Supreme Court,” the attorney said.
Supreme Court justices have not commented publicly on the new regulations.
The Epoch Times reached out to the Supreme Court’s Public Information Office but had not received a reply as of press time.