We Need to Talk About Ethics Reform

In the fifth and final installment of our Hot Supreme Court Reform series, Kate speaks with Gabe Roth, executive director of Fix the Court https://fixthecourt.com/. What would a meaningful and enforceable set of ethics rules look like for the Supreme Court justices? Why isn’t there an Inspector General for the judiciary? How are there no real rules around recusals? Roth makes the case for these nonpartisan reforms and more. Take the Strict Scrutiny survey https://crooked.com/strictsurvey. New Strict merch available here https://store.crooked.com/products/were-gonna-need-a-bigger-court-graphic-t-shirt. You can now listen to Strict Scrutiny for CLE credits in California, New York, Texas, Pennsylvania, Illinois, Virginia, North Carolina, Georgia, Washington, and Oregon! More info at crooked.com/strict_cle http://crooked.com/strict_cleGet tickets for STRICT SCRUTINY LIVE on November 6th in Washington, DC: Crookedcon.com http://crookedcon.com/Buy Melissa’s book,The U. S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader https://bookshop.org/p/books/the-constitution-annotated-for-the-contemporary-reader-melissa-murray/8e7f0dfa472fc3ca?ean=9781668221938&next=t&Buy Leah’s book, Lawless https://bookshop.org/p/books/lawless-how-the-supreme-court-runs-on-conservative-grievance-fringe-theories-and-bad-vibes-leah-litman/5b562d6fcb316d6e?ean=9781668054642&next=t, now out in paperback Follow us onInstagram https://www.instagram.com/strictscrutinypodcast/?hl=en,Threads https://www.threads.net/@strictscrutinypodcast, andBluesky https://bsky.app/profile/strictscrutiny.bsky.socialFor a transcript of an episode of Strict Scrutiny please email [email protected]

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Kate Shaw?

  Strict Scrutiny is brought to you by Americans United for Separation of Church and State. Guess what, folks? It's back to school season. And this year, 5 million children across Texas are going to be greeted by, wait for it, the 10 commandments in their classrooms. Texas politicians passed a law requiring the 10 commandments to be displayed in every public school classroom, forcing their religion on every kid in those schools. 28 families in Texas, supported by Americans United for Separation of Church and State, are taking the fight to the Supreme Court. And we need you to amplify their voices before the Supreme Court gets its hands on this case.

• 0:35Speaker 01

  They're going to go up, but we're going to fight to get them taken down.

• 0:40Kate Shaw?

  That was Texas public school parent Ted Lowe. Ted and Rebecca Lowe are an interfaith couple. Ted is Jewish and Rebecca is Christian, and their kids are in Texas public schools. The story that they tell in this video is moving, and we hope that everyone hears it and shares it, because there is a human cost to Christian nationalist policies like these 10 commandments laws and the decisions that the Supreme Court hands down. You can visit au.org/10c to learn more about this case and how you can help join the fight to protect church-state separation.

• 1:15Speaker 02

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• 1:46Speaker 03

  Mr. Chief Justice, please, the court. It's an old joke, but when a hargained man argues against two beautiful ladies like this, they're going to have the last word.

• 1:59Speaker 04

  She spoke, not elegantly, but with unmistakable clarity. She said, "I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks."

• 2:29Kate Shaw?

  Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm Kate Shaw, your lone host for this edition of our special bonus series, Hot Supreme Court Reform September. And for this installment of our series, I'm delighted to be joined by returning guest Gabe Roth, who is the founder and executive director of Fix the Court, which for over a decade has been focused, monomaniacally, you might even say, and I say that with admiration and appreciation, on reforming the Supreme Court and making it more democratically accountable. Gabe, welcome back to Strict Scrutiny.

• 3:01Speaker 05

  Thanks so much for having me back, Kate.

• 3:03Kate Shaw?

  So as you know, Gabe, and listeners by now should know, we are spending September and just a sliver of October doing weekly deep dives on various SCOTUS reform proposals. We've talked about term limits and court expansion and jurisdictions tripping. And if you haven't listened to those episodes, please make sure to go back and do that. They're great conversations. But for today, I want to focus on Supreme Court ethics, although maybe at the end of the conversation, we'll sort of broaden things out a bit. So, Gabe, Supreme Court ethics are something very much in your wheelhouse. This has been something that you've focused on for quite some time. And maybe before we talk about reform proposals, let's take a couple of minutes and just identify the problem. So how would you describe the problem with the Supreme Court when it comes to ethics?

• 3:46Speaker 05

  I think if you just, yeah, broaden it out, Fix the Court has, since we launched in 2014, has called the Supreme Court "the most powerful, least accountable part of our federal government." And I think that's even more so now than it was when we started in 2014. And so I think the problem is that if we see something wrong, if we see some ethical malfeasance, there's really no way to fix it because there is no impeachment and removal that's just never going to happen. And the Supreme Court, as has been articulated by some of the justices, believes, I think, inaccurately, that it is above some of the laws that Congress passes.

• 4:26Speaker 05

  So, you know, if a justice, just to give an example, is accepting lavish gifts and going on all these free trips paid for by someone who clearly has a view on how the Supreme Court should be ruling in cases, there's at least currently little that we, the public and the public through its representatives in Congress, could do to sort of tamp that down. So I think there just needs to be stronger rules of the road, maybe some different personalities of the court down the line as well. But I think just as a sort of basic level, the way I like to think about it is, if you're going to have a court that has arrogated to itself so much power, right? You and I were in college when Bush v. Gore came out. And so the idea that the Supreme Court decides an election, I mean, the Supreme Court came down with a major election case just last night.

• 5:11Speaker 05

  We're recording this on the 15th. So on the 14th, they came out with a major election ruling, deciding many aspects of all our elections. The Supreme Court is going to have this much power to decide life or death and healthcare and voting and gerrymandering and elections and healthcare access and so much more. They should follow some of the same rules that other branches of government and even the lower court judges have to follow. So that's sort of like the big picture is like, you know, there's definitely a problem. And I think, given all the power the justices have, they should be looking elsewhere in government and following some of those rules.

• 5:43Kate Shaw?

  Yeah. So this is an institution with enormous power that it has asserted for itself over everything from elections, immigration, abortion and bodily integrity, public health, the environment. I mean, the list goes on. And they, right now, are subject to no meaningful accountability mechanisms, short of impeachment, which, under the Constitution, is virtually impossible in a highly polarized moment where you need super majorities in the Senate to actually remove someone for office pursuant to impeachment provisions of the Constitution. So enormous public power, enormous public power for life, and very little accountability. And so it's not only important that I think that the Supreme Court, like other government

• 6:27Kate Shaw?

  officials, be subject to some kind of ethics rules. In some ways, it's the most important branch to subject to binding ethics rules because they don't stand for regular election. And they're not hauled before Congress for regular oversight like members of the executive branch, right? There just aren't the same kind of checks and accountability mechanisms. And so it seems really important that they be subject to binding ethics rules. And you alluded to this a little bit, but, Gabe, will you say a little bit more, and I think this is very much part of the problem, about what some of the justices seem to think about the applicability of the ethics rules that constrain all other members of public office to them? Like, how do they communicate their positions on whether they're bound at all by the laws that do exist?

• 7:12Speaker 05

  I mean, I think you're teeing me up for the Justice Alito interview in the Wall Street Journal three years ago, and I'm happy to elaborate on that. But basically, he told the Wall Street Journal editorial board that Congress can't make laws that bind the justices for any sort of reason, which is super ironic because Justice Alito, the entire 36 years he served in the federal judiciary, has filed and submitted an annual financial disclosure report, which is required under 5 U.S.C. 13101 and following, that he file. The justices actually did it voluntarily after the Fortis scandal in the late 60s, early 70s. But then after Watergate in 78, Congress passed the Ethics and Government Act, requiring these disclosures. That went into effect in 81.

• 7:57Speaker 05

  Lower court judges actually sued so they wouldn't have to file annual financial disclosures because they were thought to be too invasive. They lost in the court below. SCOTUS denied cert in, I think, January of 1981. And then since then, the justices, all nine of them, every single year, have filed an annual financial disclosure report. That is 100% a creation of Congress, the fact that they do it every year. And same thing with the 2,400 lower court judges. So this idea that they can't be, you know, the Congress can't bind them to do anything is kind of ridiculous and disproven by their own annual activities with the filing of the disclosures.

• 8:34Kate Shaw?

  Okay, yes. So absolutely, they have appeared to acquiesce. They, the lower courts, I think, have stopped contesting that they can be bound and required to file annual financial disclosure reports. The SCOTUS members as well filed these annual reports, although we can talk a little bit about the sometimes-

• 8:50Speaker 05

  Oh, they omit things. Oh, yeah. That's a problem.

• 8:52Kate Shaw?

  Yeah, it's sort of spotty, sort of like, you know, practice. But at least they do, I think, through their conduct, seem to be acquiescence in the acquiescing, rather, in the applicability of these, you know, mandatory filing requirements to them. And yet, there are, I think, not so. Alito told the Wall Street Journal that basically Congress doesn't have any authority to regulate justices of the Supreme Court. But it's also the case, I think, that they have suggested that they are deciding to file these annual financial disclosure reports, but maybe just as a matter of grace and discretion as opposed to compliance with some binding directive that Congress has the authority to subject them to.

• 9:34Kate Shaw?

  So in 2023, following this wave of, I think, really blockbuster pieces, largely by ProPublica, revealing the degree to which several justices have been the beneficiaries of this largesse from kind of billionaire friends and benefactors, the justices announced for the first time that they were setting forth a code of conduct for the justices of the Supreme Court, which they said basically just formalized and announced to the public, the practices the justices already followed. And the filing of the annual financial disclosure reports are sort of on the list. But it almost sort of suggests that the willingness to file these annual reports is

• 10:17Kate Shaw?

  something that the justices are deciding to abide by, but only again because they have decided to do so, rather than because Congress has enforced upon them this binding obligation. And so I kind of think that the filing of the annual financial disclosure reports is important, but the things they have said and communicated about why they are filing, in some ways, only underscores the problem, which is that they have announced that they are the kind of ultimate arbiters of the ethics rules that they are going to follow. And that, I think, evinces a fundamental misunderstanding of these core separation of powers principles, which is that every branch is subject to checks from other branches. That's pretty central to the design of the Constitution.

• 11:01Kate Shaw?

  And yet, this Supreme Court seems to believe that it alone sort of stands outside of meaningful checks. And maybe it's going to decide to do some things that will promote a modicum of transparency, but, you know, it could decide differently tomorrow if it wanted to. So do you basically agree with that assessment?

• 11:18Speaker 05

  Yeah, so yeah, that that hearkens back to a William Rehnquist authored memo in 1991, when the Ethics Reform Act was coming into effect. And that talked about, okay, there are these new gift rules that Congress is putting on itself and on the judiciary. We make no statement on the constitutionality of these new gift rules, but because we're nice guys and gals, we're going to follow them. So that was that was this memo you can we'll link I'll link to it on fix the court.com. I'm sure we have it there. But, but yeah, it is, it was the justice is saying, okay, you know, we have these new gift rules. We have this disclosure rules. We're gonna, we're gonna follow them. I mean, the thing is that if they don't file a disclosure, if they lie in the disclosure, the Attorney General can bring a civil action against the individual if if, but typically it has to go through the Judicial Conference

• 12:03Speaker 05

  and the Judicial Conference, which is the policymaking body, the judiciary is run by Chief Justice Roberts and as a body runs interference on ethics issues. There's a judge in Georgia that had sex in her chambers and lied about it, and she should be impeached in the Judicial Conference. Their Committee on Judicial Misconduct could have done something, and they didn't. The Judicial Council there didn't do anything. So the infrastructure of the judiciary itself, it's not just the court, it's sort of insulates the justices from accountability. And, and you know, I think what you were implying is that it might come to a head, right? If we have an enforceable ethics mechanism that is passed by a future Congress, if we have a gift ban rule, if we have certain rules about prediction markets

• 12:45Speaker 05

  or amicus filings or lobbying at the court, what have you, that might end up being decided by a Supreme Court. And what is the Supreme Court going to do? It doesn't mean I don't think we should try to get convince our member of Congress to pass new ethics rules for the court. And I have a whole host of them that, you know, we can, we can talk about. But, you know, I do think that that is an important point that and it, but it's a similar, I think it's similar to the conversation you had with Alicia on the, on the term limits context. Like, the Supreme Court might say term limits are unconstitutional, but we still have to try. I mean, I still, we still have to say, like, this is what we want the Supreme Court to look like from a, you know, a length of tenure perspective or an ethics perspective. And if the Supreme Court ultimately turns down that law, I mean, look, in 2022,

• 13:28Speaker 05

  we passed, we got a law passed, bipartisan law passed that requires all the justices to post their disclosures online and to post their stock transactions online. It's an extension of the Stock Act that was passed for members of Congress 10 years earlier. Alito's posting his stocks, Roberts is posting his stocks, the justices, when they, when they get, you know, they're, they're following this law. So I think, you know, I'm sort of of the mind that when it comes to brass tacks, I'm going to be hopeful. And if it ends up coming to a constitutional head and the Supreme Court says, oh, these ethics laws are unconstitutional, then, then sure, let's ramp up. But, but I think we at least have to try to pass something stronger via legislation, rather than acquiesce to this sort of, you know, Rehnquist, Alito Thomas view that, that they can't do anything about us.

• 14:12Kate Shaw?

  Right. They would like they are through these statements, trying to communicate basically back off Congress, because maybe anything that you try, we are going to assert the authority to invalidate. But that's of course not a reason to move forward, because fundamentally, they're wrong. Congress does have the authority to regulate them.

• 14:28Speaker 05

  And if not, we can take away their budget. I mean, this is something that we at Fix the Court have started years ago. I think it's catching on now. The Supreme Court now has, I mean, it was back then, it was like 100 million. Now it's closer to 200 or 225. Half of that is for security. I think that's sacrosanct. The justices need to be safe. Like, that's, that's, that's no, there's no debate there. But

• 14:46Kate Shaw?

  Like, do they need for a law clerk?

• 14:48Speaker 05

  Exactly. We can take away the money for their law clerks. We can take the money for their, their printing and their judicial assistance and their lunches and their electricity or what have you.

• 14:57Kate Shaw?

  I'm okay with them keeping electricity. I think security electricity may be

• 15:00Speaker 05

  You know what, Kate? They get electricity. That's fine. But they don't get, yeah.

• 15:04Kate Shaw?

  Yeah, I think that the kind of the cudgel of the budget is really important. Okay, so we jumped a little bit ahead to sort of like, right, what, how a showdown might look if Congress actually did pass binding ethics rules with teeth that applied to the justices.

• 15:18Speaker 05

  So I want to give you a caveat there, though.

• 15:20Kate Shaw?

  Yeah.

• 15:20Speaker 05

  Because I think it's important, because when, when we're talking about binding ethics rules, too, I think it's also important to remember, like, the goal of the binding ethics rules are not to make it so Clarence Thomas and Sam Alito no longer hear cases. Like, I just don't think a world exists where that is possible. I don't think there's 67 senators to impeach and remove. I don't think there's enough cases where recusals could be put into play. I mean, I'm sorry to disappoint that progressives would listen to this podcast, but I don't think that Thomas and Alito are going to leave, other than when they decide to step down in 2027 or 2028.

• 15:54Kate Shaw?

  That, that's fine. Yeah.

• 15:56Speaker 05

  The ethics, no, no, but the ethics, but with, with enforceable ethics, you know, it, it's just, it's, it's having, you know, what I want to, you know, sort of just put out there is like, the fact that there is no inbox to file a complaint against a justice, the fact that there is no one within the court, right? Personnel is policy. They haven't hired any ethics experts since the 2023 code came out, that there's nobody in the court, and there should be an inspector general and ethics counsel and ethics investigation counsel and their bills that would do all of this, within the court, reviewing the justices' behavior to ensure that it's compliant. You know, the fact that there, there is no one doing that. I mean, I think that, you know, that might not be satisfactory for those of us. And look, I'm, you know, pissed off at the conservative six as much as anybody.

• 16:38Speaker 05

  But, you know, to have somebody there that's reviewing this, so the public understands what these justices are up to and what their foibles and their ethical malfeasance is, I mean, you know, the fourth estate does a great job, but we need somebody inside the building reviewing these, these possible complaints. But we currently don't even have that. So I think it just, it is, when we talk about ethics, enforceable ethics, it's both sort of a very high bar, because no one's getting impeached and removed on the one hand. But on the other hand, it's a very low bar, because it's like, let's at least have somebody in there and some sort of process. So the public feels that we know the ethical framework through which the justices are operating.

• 17:19Melissa Murray?

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• 22:35Kate Shaw?

  Okay, so why don't you give me a few bullets, which are you've you've mentioned gift ban and prediction markets and just maybe give me like four, five, six bullets of of what an ideal legislative package in terms of the substance would look like. And I know there's some bills out there, but our listeners are not going to be as steeped in the specifics as you are. So so talk about some of the specifics and then maybe to say a little bit more whether an ethics council, an inspector general, both sort of what it would look like to have some independent or quasi-independent actors inside the judicial branch and maybe inside the Supreme Court specifically that actually enforce these new rules were they to go into effect?

• 23:12Speaker 05

  Sure. So I think that's foot in the door. Just get in there, talk a little bit about what we need to do to fix things. That, to me, is the gift ban bill. Currently, there's a bill introduced by Congressman Raskin in the House and Senator Lujan, Raskin from Maryland, Lujan from New Mexico in the Senate, that would effectively get place upon not only the Supreme Court justices, but all 2,400 federal judges, the same gift acceptance rules that members of the other two branches have to follow. And it's a little bit different branch to branch. I mean, the executive branch, it's usually $20, but obviously, like, there are a million emoluments right now. So what does that even mean? Congress, it's $50. The reason it's not $0 is you don't want to get in trouble if you like, take a pen away from a constituent event or like, get

• 23:57Speaker 05

  a free Starbucks coffee when someone's passing it down in line or whatever. So it'd be a $50 limit for gifts for a single gift and then 100 for for the year. So to me, that is sort of like the very basic, we should be able to get a bipartisan consensus on this.

• 24:12Kate Shaw?

  And to be clear, there is not such a ban in place when it comes to federal judges at the moment. That is really striking.

• 24:18Speaker 05

  Yeah, we've fix the court has identified something like more than, I think it was 515 gifts that the justices have accepted over the last 20 years. And that's ridiculous. I mean, some of them are, you know, Justice Sotomayor got a pin from the University of Vermont, that's, you know, five bucks or whatever. Justice Gorsuch got a silver julep cup from one of the schools in Kentucky, because they're all about their mint juleps there. That was like worth 50 bucks. But some of these are flights on a private plane across the world worth 10s or even hundreds of thousands of dollars, or free yacht trips around the world worth worth 10s of hundreds of thousands of dollars. The justices all make $300,000 a year. None of them are poor. They can all

• 25:00Speaker 05

  afford their vacations. They can all afford a julep cup if they want one. And so to me, just requiring the justices have the same rules as as as members of Congress on the gift makes makes a ton of sense. And so that's sort of that's sort of number one. And I think number two would be creating sort of an enforceable ethics framework that is very similar to what we have in the lower courts. Right? So I filed a complaint against Judge Emile Bovee on the Third Circuit. He attended a Trump rally. I couldn't find any history of sitting federal judges attending a political rally. I filed a complaint against him. That's being reviewed currently. Can't really talk much more about it because there's confidentiality rules around it. But that I know that is being reviewed by a panel of judges somewhere in America. Okay.

• 25:42Kate Shaw?

  So you can do that. So Bovee sits on the Third Circuit. It turns out you, as a concerned member of the public, you know, a watchdog or even just a citizen who is interested.

• 25:49Speaker 05

  Yeah, I live in Virginia. I've never met the guy.

• 25:51Kate Shaw?

  But there's a mechanism for doing that, for initiating a complaint when you think that some improper conduct has occurred. There is just no such process when it comes to the Supreme Court justices.

• 26:01Speaker 05

  Exactly. So that would be number two. So it would be just be creating some sort of mechanism, whether it's reviewed by an inspector general or some sort of internal ethics office. The Supreme Court has an office of legal counsel, you know, kind of as useful as maybe the DOJ OLC at the moment, for those of you who know, you know. But they have an OLC.

• 26:21Kate Shaw?

  I'll say, actually, it's very good lawyers in that office, and they just have a remit or mandate that is not does not encompass the kinds of sort of.

• 26:29Speaker 05

  Sure, sure. Ethan, I'm sorry. I didn't mean to diss you.

• 26:31Kate Shaw?

  No, it's just it is a small office and it and it has kind of a time honored function. But that does not encompass, at least, you know, when I was familiar with it, this kind of evaluation of the ethical propriety of certain courses of conduct that justices might want to take, or gifts they might want to receive, or things like that. And I think that it would be difficult to expand their mandate to include this kind of work. I think much more realistic would be creating something new, a new entity and populated with new people. Yeah.

• 26:59Speaker 05

  Exactly. So I think I think that's sort of number two is is figuring out what that is. I think there's room for both an internal ethics office at the court and then sort of a branch-wide judiciary inspector general. Chuck Grassley had a bill to do that for about a dozen years. He's no longer on it. Now it's Dick Blumenthal. So it was a Republican bill. Now it's a Democratic bill. It's like 99% the same bill. But over the last two decades, Republicans and Democrats alike have seen the value of having an inspector general in the judiciary. There's an inspector general in all the agencies in the executive branch, and then Congress has its own internal, there's no inspector general per se, but they have internal ethics bodies, the Senate Ethics Committee, the House Ethics Committee,

• 27:40Speaker 05

  and other ombudsmen. So something like that in the in the judiciary, that would be, you know, we'd be funded through the judiciary. It'd be Article III. I think you have to appoint it by, I think you have to have Chief Justice Roberts appointed. I don't think you could have a president appointing an inspector general for the judiciary. That'd get a little fishy from separation of powers issues. But have it have Roberts appoint, you know, I don't know, Tom Griffith, Mike McConnell, Greg Costa, Paul Watford, you know, a former

• 28:05Kate Shaw?

  one of these respective former federal judges.

• 28:06Speaker 05

  Who's hanging out, doing their thing.

• 28:09Kate Shaw?

  Yeah, it's hard to see what constitutional objection you could possibly formulate to Congress creating an office. I mean, Congress creates, you know, the all aspects of the lower federal courts and has passed a lot of laws regulating different aspects of the Supreme Court, even though the Supreme Court itself is created by the Constitution. The specifics, like the details, are filled in by Congress. And so this would be that. And then giving the chief justice the authority to appoint, say, yeah, the inspector general, I think, would sidestep any possible constitutional objection. And then so so so in terms of what such an office would do, so we have, you know, potentially enforcing this gift ban, advising on whatever, wherever the line is, because I think it's right that it's pretty customary to say, certain kinds of, you know, de minimis value

• 28:53Kate Shaw?

  items that are exchanged all the time. When you're a public official and you talk to groups and you and you visit locations, people do give you pens and plaques and T-shirts. And there's nothing really objectionable about that. And so you figure out where the line is. Yeah. But above that, there's no conceivable public facing reason to give the justices the authority to take high value items and all kinds of reasons to prohibit it. And so figuring out how to enforce that would be one piece of it. What about, we haven't really talked about recusals. And that's something that that I'd be curious to hear a little bit about. So under the plain terms, I think, of 28 U.S.C. Section 455, federal judges and justices are required to recuse themselves or disqualify themselves, quote, "in any

• 29:36Kate Shaw?

  proceeding in which their impartiality might reasonably be questioned." I also think the commentary to the 2023 code suggests that there might be some question about whether that statute clearly applies to the justices. There's like this language in the commentary that's attached to the code about how sometimes the duty to sit or the rule of necessity, like you need to have a quorum of Supreme Court justices. And so this kind of disqualification directive in the statute has to be understood in light of this kind of other principle that the Supreme Court is unique because you need the justices all to sit. Now, you actually only need six to make a quorum, but that disqualification is problematic on the Supreme Court in a way that it's not in the lower federal courts, at least in the view of, I think, this current Supreme Court. Anyway, so sorry, that's kind of a

• 30:21Kate Shaw?

  long wind up. But I guess sort of would this potential inspector general or other kind of enforcement authority also advise on or issue kind of, you know, binding guidance to the justices on recusal? Or just how would recusal work?

• 30:34Speaker 05

  Yeah, I think I think binding guidance would be tough. I think the justices, the best that we've come up with, those of us who have thought about it in terms of legislative language, is if you are a litigant and you want a justice to recuse, one of the nine, you can file a recusal motion, and then the eight other justices would decide the merits of that recusal motion. And then that justice should follow the recommendation of the eight other justices. The problem is that we, all of us, all humans, are terrible at understanding the levels of our own bias. And so the idea that if I file a recusal motion against Justice Gorsuch to recuse in some case, I don't even know what. You know, he's currently, and I'm a litigant, he's the only person who can decide that

• 31:17Speaker 05

  motion, and that is completely ridiculous. So like I said, you know, the best is take the one, pass it off to the other eight. Are the other eight going to run interference for that one? Maybe, but I think it's worth having the other justices say, okay, this is why I think that, you know, Justice Gorsuch in this case should or should not participate in that case. And so I think, and there are ways to expand the recusal rules. And I think you're right. If you look at the code of conduct and you look at some Supreme Court precedent, it's, it's, you know, the federal law says impartiality reasonably questioned, you have to recuse, shall you have to recuse. And you look at the Supreme Court, the jurisprudence, the common law, it's like, well, actually, if it's an unbiased person who knows all the facts of the case, who understands the law, it's like they're adding all these stipulations

• 32:02Speaker 05

  that are not part of federal law. So I think, you know, A, getting rid of stipulation is theoretically possible in statute, number one. Number two, expanding the recusal law to say, okay, you know, if you're a litigant and you've donated money to the, and for the confirmation, right? There was a case, AFPF versus Bonta, and AFP, which is a sister organization of AFPF, donated a million dollars to get Barrett and Kavanaugh on the court, and they didn't recuse in AFPF versus Bonta. And I thought that was kind of ridiculous. You know, a million dollars is not like, you know, here's $3 to support somebody, you know, whatever. Like, it's, that was, that was a huge amount of money to get those two justices confirmed. And then when their sister organization had this big case, First Amendment case before SCOTUS, all nine justices heard that case. So I thought that was a little ridiculous. So, and there's also ways to include-

• 32:47Kate Shaw?

  And lo and behold, I think it ruled for the organization with, that was challenging on First Amendment grounds-

• 32:51Speaker 05

  Of course, of course they did.

• 32:52Kate Shaw?

  The regulation that they, yeah, that they didn't, that they didn't like.

• 32:54Speaker 05

  So I think there's ways to expand it. You know, spousal jobs, I think that there's a lot of concern about, you know, Chief Justice Roberts's wife's job because she's a legal recruiter. I think that's overblown, but I think there is definitely concern about what Ginny Thomas was doing in January 6th. And if she had sort of a financial motivation to try to stop the certification of the 2020 election, we need to know about it. And Justice Thomas should recuse. So there's ways to, you know, sort of at the margins, expand the recusal law. If you've given a gift to the justice in the path, you should be required to recuse up to a certain point in time. So I definitely think there's ways to improve it and make it clear. But I think the larger, and this is actually just to mention, Senator Murphy just put out a bill, it's called the Supreme Court Ethics Act. He's put out a

• 33:37Speaker 05

  version of this every Congress since 2011. So, you know, he's not, he's been on this for a while. And his language was, the justices shall write a code of conduct that is at least as strict as that which applies to the lower court. So the fact that the justices in their 2023 code wrote something that was not only not enforceable, but not even as strict as their lower court compadres was kind of ridiculous.

• 33:59Kate Shaw?

  Yeah. Yeah. I mean, I, I find myself nervous about a lot of these legislative proposals that seem so cautious about doing anything that appears to direct a vis a vis the justices, and just pans them, the authority to do everything. And I, and I sort of worry a little bit, but I understand wanting to respect and be mindful of constitutional lines. But I think the overdeterrence that I think we are seeing, that the Supreme Court has sort of saber rattled, and so everyone says, well, we're going to be really careful not to overregulate because you might strike down what we do, is also a real problem. But certainly, whatever the source, whether it's Congress legislating directly, or Congress telling the justices to promulgate something, it is crazy that this incredibly powerful body shouldn't be subject to ethics rules that are at least as strict as those that are applicable to

• 34:43Kate Shaw?

  the lower federal courts. Like, it's, it's, it's really wild. Um, okay. So, so let me ask you to follow up on something that you said a couple of minutes ago. So you mentioned that Grassley, of course, is a Republican senator from Iowa, for many years introduced a version of the bill that would have created an inspector general that is now kind of a Democratic priority. But I think the sort of deeper point is that for a long time, and you think correctly, this has been a sort of nonpartisan and non ideological issue, injecting some degree of ethics rules into the Supreme Court. And so can you talk a little bit about this? I've heard you talk about this before, but can you just like, make the case that Supreme Court reform and ethics reform in particular should be a nonpartisan and non ideological issue?

• 35:25Speaker 05

  Sure. So first, I'm going to make the shitty case, and then I'll go, I'll make the real case. So the shitty case is conservatives, you're winning at the court. You should want a court that is above board ethically, that people aren't doubting their ethical forbearance and their decision to come out this way, because there is a sense in the public that they are acting unethical. So the justices should be doing as much as they can ethically to, to, to proper, and you know, you still have a 6-3 court at the end of the day, right? If you're, if you have all these ethical rules, the, the math is the math. I mean, there are other groups that want to, you know, I'm happy to talk about jurisdiction stripping or expansion or whatever, but that's not really what I do. I do mostly ethics and about half, that's actually half lower court, half SCOTUS. But, you know, the point is

• 36:07Speaker 05

  that, you know, if you're a conservative, you, you should want the court to be looking better than it is now, and, and putting upon themselves ethical frameworks because you are winning, right? People are doubting why you are winning because they think that you're doing it via underhanded unethical means. So that's sort of the-

• 36:24Kate Shaw?

  That's why I would disparage it. That, that is a case, if you're trying to build like a really big tent, and I think you're right, it's harder to build like a really broad constituency for some of these other kinds of reforms. But ethics, I think, is the one that has the most realistic chance of actually attracting sort of broad support. And I think, yeah, I mean, maybe for very different, it's like the Supreme Court's sort of very low approval ratings right now. And I talked to Jamel Bowie about this, you know, a lot of it is liberals were really unhappy, and I think rightly so with the court. But then there's also this conservative contingent that is mad the court hasn't been more MAGA. And so anyway, that's together, you get like a 33% approval rating. Anyway, so, so I actually do think there is a world you could imagine where Supreme Court ethics reform actually

• 37:06Kate Shaw?

  gets across a legislative finish line, because there are people who have very different reasons to be unhappy with, with SCOTUS. So, anyway, but so the conservative case is that you want a court that actually is not going to be dogged by these accusations or suspicions that it's acting for improper motives, that it's doing all these conservative things, and, and people sort of have to accept those. So you like the court, you should support ethics reform. What's the other case?

• 37:29Speaker 05

  The other case is that the Supreme Court is not different from any other government institution. Just because it's mentioned in Article 3 of the Constitution, and we have this like reverence for it, and like, we even have reverence for individual justices, which is so weird. I mean, like, there's no such thing as the Scalia seat, or the Ginsburg seat, or anyone's seat. It's just people who are supposedly doing, supposed to be doing a job, and then getting out and, you know, riding circuit after they retire, like Justice O'Connor did, and even Justice, Justice Breyer is doing as well. But anytime you have a, an institution with that much power, you want them to, to sort of, you know, follow

• 38:12Speaker 05

  the same rules as everyone else. And I think we've, we've sort of, you know, people's, I guess, okay, so I'll, I'll say it this way. People think, oh, the Supreme Court is a different, they're not political, they, they're above us all, we have to have a Supreme Court because they decide if, if, you know, two different circuits or whatever disagree, or if there's a tough question of politics or constitutional law. Yes, but at the same time, it's, to me, it's, it's, it's the substance, right? It's what they are deciding and how much power they have that requires them to have this strong ethical framework. Having Congress pass laws that make ethics happen, is, doesn't make the court political. If anything, it tamps down the political, the politicization of the court. They've already

• 38:57Speaker 05

  decided that gerrymandering isn't a thing, that the Voting Rights Act isn't a thing, that they're going to stick their noses in basically every federal election that we ever have. And so because of that, there is sort of a floor upon which they should be operating. And they are not currently doing that. And, and that, to me, is a big opportunity, no matter who you support, no matter, you know, left, right, center. And so, you know, in the end, you know, it, it should be something that, that, that the left and right can agree on. I have an op ed in SCOTUS blog about why, why that is, and you can, you read that or whatever, if you're interested. But, but overall, and historically, because it hasn't been a partisan issue, you know, I'm hoping that, you know,

• 39:42Speaker 05

  maybe after Thomas and Alito retire, it can become a little bit more bipartisan because they're such lightning rods these days. But in the long run, you know, my, my hope in creating a nonpartisan nonprofit is that we can sort of return to first principles, which is all three government branches should be equally ethical all the time.

• 40:01Kate Shaw?

  Mm hmm. I, I worry a little bit about having to wait for Alito and Thomas to exit the stage to do something. I mean, this feels like-

• 40:08Speaker 05

  I think they'll be gone in the next 18 months, but you know.

• 40:10Kate Shaw?

  That's fascinating. Okay. Well, and then I suppose the legislative agenda sort of would, would kind of align in terms of timing. But I guess, you know, I'll have to have you back in 18 months and see where, and see where things stand. Um, uh, maybe just one or two more questions. So you've said you mostly do focus on ethics reform, but if you were going to sort of think more broadly than just ethics reform, are there things that you think should be done to change SCOTUS beyond this, the stuff that we've been talking about?

• 40:38Speaker 05

  You're gonna make me talk about term limits, aren't you? Okay, here we go. So, so, look, I, I think, I, I, at first, so when Fix the Court started in 2014, we did, term limits wasn't one of the fixes because it was so entrenched within the conservative movement and I was trying to create a nonpartisan nonprofit. So if I had term limits, everyone's gonna be like, oh, you're conservative. Then, as sort of we moved into 2015, I started talking about term limits and all my liberal friends were like, why are you trying to reduce the tenures of Hillary's justices? And I'm like, okay, well, and you, obviously, everyone knows how 2016 turned out. So regardless, we decided in 2015 to add term limits. I think that, you know, having justices, and I was really sort of convinced by this,

• 41:21Speaker 05

  this Law Review article by David Garrow, who's an Obama biographer and Pulitzer Prize-winning historian, basically showing that in every generation, a justice has lost their mental acuity before they retired. So even someone, you know, everyone knows the William O Douglas example, but even Brennan and Marshall, there were examples of them sort of slipping towards the end. Ginsburg and Scalia were definitely not as sharp towards the end as they were earlier in their careers. So I think the idea that you have justices who serve for a time and not for all time, which in this case is 30 or 35 years, is something that we need to institute. I think the only way to do it, however, is to have them be prospective.

• 42:01Speaker 05

  So in other words, you'd add a new justice, that justice would be serving for 18 years, for life on the federal judiciary, 18 years of which would be on the Supreme Court, and then they'd rotate off and serve on, you know, the regional court in Boston, Chicago, New Orleans, Cincinnati, wherever, or retire or whatever. They could do whatever they want to do. I don't think you can reduce the current, the tenure of the current justices. So what this means in practice is that if there's a Democratic president in 2029 and term limits is instituted, that justice might be the 10th justice for a time if the nine who were sitting in 2029 don't want to leave. So, you know, it's not going to be a perfect nine-justice, 18-year rotation for maybe a decade or two, so there might be 10 justices, 11 justices. I'm fine with that.

• 42:44Speaker 05

  And I polled Republicans, Democrats, and independents about this a few years ago, I think 2021, and they were, they were all fine with that, better than the current system of 40-year, you know, we're getting close to 35, 40-year tenures. So, you know, I don't think you can reduce the tenures of the current nine, but I think that if you have justices who have prospective term limits, you would, you know, in a little, and, you know, take a little while, but you'd have that perfect nine-justice, 18-year term limit rotation. And there, there's a bill in Congress, it's HR 1074, that would do that. And, you know, hoping it'll continue to be introduced in every Congress until one day it's enacted into law.

• 43:17Kate Shaw?

  Yeah. I really like, and I had sort of a similar conversation with Alicia Bannon about coming to the place of supporting term limits. I think that we, different people have had different trajectories around them, and mine was a little bit different, and it sounds like yours and Alicia's, but, but it is interesting that people with very different kind of priors have, over the years, like with enough thought and also given the trajectory that the court has been on, come sometimes sort of unwillingly, but come to believe that actually some version of term limits, and yeah, maybe paired with either deliberate or just kind of functional court expansion as part of the implementation of the term limits, actually is really, really important and actually kind of goes in some

• 44:01Kate Shaw?

  ways hand in glove with this question of ethics reform. Right now, enormous power, service for life, few meaningful constraints, and also like, you know, an unamendable constitution. This is a truly intolerable state of affairs, and it's, I think, going to require a multi-prong and multi-front and maybe multi-year effort to actually address it. But all of it, I think, is necessary to get to a place of a healthy, functioning Supreme Court, consistent with our constitutional design, because we are very, very far from that right now. Okay, Gabe, if people want to learn more about ethics reform and want to hear more from you and about Fix the Court, where should they go to do that?

• 44:39Speaker 05

  Sure, we're, we're at fixthecourt.com, at Fix the Court on your favorite or at least favorite social media platform of choice. I'm Gabe at fixthecourt.com and, and, you know, we have staff monitoring the info at Fix the Court and all, every, every other combination, permutation thereof. But, yeah, I would love to hear from you. I mean, I think that, you know, people talk about, you know, the big tent in politics, this and that. I think there really needs to be a big tent in court reform. And if you're just a regular person or congressional staff or, you know, a member of the judiciary and you have a question, like, I've probably thought about it and I may not support it. I may have, you know, we may, we may not. But I think it's worth having that conversation with people who have sort of been thinking about this issue for a long time.

• 45:24Speaker 05

  And then, you know, we can go from there and see what makes the most sense to try to, to, to push legislatively. But, you know, a lot of these proposals, especially when you talk about Congress, they're going to need to pass by wide margins, right? I don't think that, you know, future Congresses are gonna spend three weeks debating a Supreme Court ethics regime. It's gonna have to pass with, you know, 60 votes, 70 votes, 100 votes, because that's just the way Congress works nowadays. And so, you know, I think the way that we get to consensus is sort of, you know, taking down the temperature about individual justices or even individual rulings. I think there's definitely a place for that outside the ethics conversation and figuring out ways that, you know, we can expand the tent and expand the view of what smart Supreme

• 46:06Speaker 05

  Court ethics reform looks like and how we're doing it not to necessarily hurt or help one party or one political view or another, but how we can make a, and create a Supreme Court that we all feel proud of and that we all trust that their hearts and minds and ethical mores are in the right place.

• 46:24Kate Shaw?

  All right, well, this sounds like sort of a fantasy land right now, but I do think it feels like a place that we just have to sort of start to try to figure out how to move toward. Thank you so much, Gabe Roth from Fix the Court, for joining me today. Really appreciate the time and your relentless focus on this issue.

• 46:36Speaker 05

  Thank you.

• 46:41Kate Shaw?

  Strict Scrutiny is a Crooked Media production. Our show is produced by Melody Rauel and Michael Goldsmith. Music by Eddie Cooper. Our team includes Matt DeGroot, Ben Hethcote, Johanna Case, Kenny Moffett, Adam Lippert, and Eric Schut. Our production staff is proudly unionized with the Writers Guild of America East.

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