The Supreme Court Needs Real Oversight

A series of recent events at the Supreme Court threatens to undermine trust and confidence in the institution and demonstrates the need for it to have a code of ethics and for better oversight within the judiciary.

In May, in what Chief Justice John Roberts called a “betrayal” and an “egregious breach of … trust,” a draft of the Dobbs opinion overruling Roe v. Wade was leaked. More recently, The New York Times reported that the results of a 2014 Supreme Court decision may also have been leaked. And Justice Clarence Thomas’s decision not to recuse himself, without any explanation, in rulings related to his wife’s actions has raised additional concerns.

These incidents and how the Court polices itself—or fails to police itself—place the public’s confidence in the judiciary at further risk. Trust in the Supreme Court has recently plummeted to historic lows. According to a Gallup poll this past summer, only 25 percent of U.S. adults say they have “a great deal” or “quite a lot of” confidence in the Court. This is a decline of more than 11 points in the past year alone, and the lowest number since Gallup began its survey 50 years ago.

To be sure, a major reason for the dramatic drop in confidence relates to the substance of the Court’s decisions—most prominently in the Dobbs case, as well as other cases overturning long-standing precedents. But whatever one thinks about the merits of these decisions, the Court and the judiciary lack effective oversight. In addition, the Court has exempted itself from ethical rules that apply to other federal judges. Both shortcomings should be changed.

The lack of ethical rules that bind the Court is the first problem—and the easier one to address. The Code of Conduct for United States Judges, promulgated by the federal courts’ Judicial Conference, “prescribes ethical norms for federal judges as a means to preserve the actual and apparent integrity of the federal judiciary.” The code covers judicial conduct both on and off the bench, including requirements that judges act at all times to promote public confidence in the integrity and impartiality of the judiciary. But this code applies only to lower-level federal judges, not to the Supreme Court, which has not issued ethical rules that apply to its own conduct. The Court should explicitly adopt this code or a modified one.

Chief Justice Roberts has noted that Supreme Court justices voluntarily consult the Code of Conduct and other ethical rules for guidance. He has also pointed out that the justices can seek ethical advice from a variety of sources, including the Court’s Legal Office, the Judicial Conference’s Committee on Codes of Conduct, and their colleagues. But this is voluntary, and each justice decides independently whether and how ethical rules apply in any particular case. No one—including the chief justice—has the ability to alter a justice’s self-judgment.

Oversight of the judiciary is a more difficult issue, involving separation-of-powers concerns. I was the inspector general of the Department of Justice for 11 years and the acting inspector general of the Department of Defense for four years; I saw the importance and challenges of oversight in two of the most important government agencies. I also experienced the difficulties in conducting complex investigations of alleged misconduct, including leak investigations. But as I wrote in a Brookings Institution article this past May after the Dobbs leak, the Supreme Court does not have the internal capacity to effectively investigate such leaks, and it would benefit from a skilled internal investigator, like an inspector general, to help oversee the Court and the judiciary.

Another example of the Court’s ineffective self-policing and lack of transparency involves its recusal decisions. For example, Justice Thomas’s wife, Virginia Thomas, has argued that the 2020 presidential election was stolen, sent text messages to former White House Chief of Staff Mark Meadows urging him and the White House to seek to overturn the election, and expressed support for the pro-Trump January 6 rally on the Ellipse. Nevertheless, Justice Thomas has not recused himself in cases relating to the subsequent attack on the Capitol.

Notably, Thomas was the only justice to dissent from the Court’s decision not to block the release to the January 6 committee of White House records related to the attack, which included his wife’s texts. Some legal experts have argued that this is a clear instance where recusal should have occurred. A statute, 28 U.S.C. 455, requires federal judges, including Supreme Court justices, to recuse themselves from a case when they know that their spouse has any interest that could be substantially affected by the outcome. In addition, the statute requires justices and judges to disqualify themselves in any proceeding in which their impartiality may reasonably be questioned.

Yet Justice Thomas apparently decided that a reasonable person would not question his impartiality when deciding whether text messages that included his wife’s should be released.

Why? We have no idea, because Supreme Court justices are not required to explain their recusal decisions, and Justice Thomas has chosen not to. That a justice can decide on the application of ethical principles to himself and decline to recuse himself, with no explanation, transparency, or oversight, diminishes trust in the Court.

Yet another example of problems requiring better oversight in the judiciary as a whole involves financial disclosures. All judges, including Supreme Court justices, are required to periodically disclose their financial assets. However, The Wall Street Journal reported that since 2010 more than 100 federal judges had failed to recuse themselves from cases before them involving companies in which they or their family owned stock.

No individual or institution likes oversight, and many initially resist it, pointing to their good faith and rectitude, their need for independence, and the harm of outside scrutiny. For a long time, the FBI resisted inspector-general oversight, arguing that this would undermine its independence. Eventually, the FBI became subject to such oversight, and none of the harms that were raised materialized.

The military has the highest public confidence and trust of any government institution, with 64 percent of those surveyed expressing high levels of trust in the military. It has an oversight system that seeks to hold itself—including high-ranking officers—accountable for misconduct or ethical violations. The military is not perfect, and often falls short in addressing its misconduct. But it does not let officers judge themselves, and tries to apply ethical standards evenhandedly. That is part of the reason the public retains a high level of trust in the military.

Of course, the Supreme Court is a different institution from the FBI or the military, with a different culture. But a key principle in our law is that no one should judge his or her own case. Yet each justice, in effect a watchdog of the Constitution and our fundamental rights, is judging himself or herself.

Chief Justice Roberts and the Court have vigorously and consistently resisted oversight, arguing that it would undermine the independence of the Supreme Court and violate the separation of powers in our constitutional system. But it does not have to be this way. Ethical rules and oversight can apply to the Court and the judiciary in a way that allows the Court to maintain its institutional independence.

First, a code of judicial ethics should apply to Supreme Court justices. The Supreme Court should explicitly state that the Judicial Code of Conduct applies to it, or implement a modified code that does.

Second, the justices should be more transparent about their recusal decisions. They should explain the reasoning for their decisions to recuse, or not to recuse, themselves in significant cases.

Third, the judiciary as a whole should be subject to inspector-general oversight—to investigate alleged misconduct and to promote efficiency throughout the judiciary’s administrative operations, not to second-guess any judicial opinion. An experienced, permanent, internal judiciary inspector general, potentially reporting to the chief justice, could be structured to ensure that the judiciary maintains its institutional independence but employs more effective oversight.

In short, the Court needs to assure the public that it is governed by ethical rules and that each justice is not voluntarily judging his or her own compliance with ethical requirements. Supreme Court justices are not above the law or ethical rules. The Court’s failure to adopt an ethical code and its resistance to oversight risk further decline in public trust and confidence.