Does the U.S. Supreme Court need more oversight in light of recent ethics concerns? UVA Law professors Amanda Frost and Richard M. Re join host Dean Risa Goluboff to discuss whether more rules are needed.
Transcript
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Risa Goluboff: Should we be regulating the ethics of Supreme Court justices? And how? On this episode of Common Law, Amanda Frost and Richard Re will discuss the court's newly released code of ethics.
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Amanda Frost: I think if we're talking about someone coming to remove them, we're talking about a serious constitutional crisis.
Richard Re: Having the watchers watch each other here, I think is me a very dangerous game.
Amanda Frost: Maybe they should feel a little uncomfortable now and again, like that's sort of the price of the job. I'm willing to live with that.
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Risa Goluboff: Welcome back to Common Law. I'm Risa Goluboff, the dean of UVA Law School. I am so excited to present our sixth season, which we're calling “Free Exchange.” Just like it sounds, we're hoping for lively discussions and possibly even some debates among our faculty who have very different perspectives on any given issue. In essence, we're taking our faculty workshop format where we test new ideas and throw them around and bringing it to our podcast. Today, I am thrilled to welcome two UVA Law faculty members, Amanda Frost and Richard Re. Welcome to the show!
Richard Re: I'm excited to be here.
Amanda Frost: Delighted to be here.
Risa Goluboff: I am so pleased to have you both here. I thought we could start by having you introduce each other. Amanda, maybe you could tell us all a little bit about Richard, and then Richard, you tell us about Amanda.
Amanda Frost: Yeah, sure. Richard is an expert on criminal procedure, federal courts, and constitutional law, and he also runs a blog, Re's Judicata, a play on his last name.
Risa Goluboff: Very clever.
Amanda Frost: (laughing) Significantly for our discussion today, Richard has plenty of experience with the Supreme Court. He clerked for Brett Kavanaugh, who is now a justice on the Supreme Court, and he also clerked for Justice Anthony Kennedy on the Supreme Court. So he's had significant experience there. And before turning to the world of academia, Richard worked at the Justice Department and practiced at a DC law firm.
Richard Re: Thank you. And Amanda is also an expert in federal courts as well as judicial ethics. She is also a top expert in immigration and citizenship law. Her most recent book is You Are Not American: Citizenship Stripping from Dred Scott to the Dreamers. Amanda has also worked as a clerk in the federal courts. She's a staff attorney at Public Citizen and worked for the Senate Judiciary Committee before becoming a law professor. And I'll just add that I'm especially delighted and humbled to be here because I think Amanda is probably the leading expert in the country on all of these topics. And her research on the topic has really shaped my thinking about the whole area. So I'm really looking forward to this.
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Risa Goluboff: Excellent. We will be right back to talk about the Supreme Court and judicial ethics
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Risa Goluboff: Supreme Court ethics has been a pretty hot topic over the past few months and probably even longer than that. So Amanda, maybe you could start by describing some of the questions that have come up about judicial ethics as it relates to the Supreme Court recently.
Amanda Frost: Yes. And I won't be exhaustive because that would take the entire podcast, but a couple of the highlights. ProPublica issued a series of articles focusing on Justice Thomas and his acceptance of various gifts, vacations, travel from various benefactors. In addition to those news stories, which I think are the ones that got the most attention, there was a news story on Justice Sotomayor who used some staff to help sell her book and appeared to be promoting her book in ways that some argued were unethical. And finally, uh, Justice Alito – there was a discussion about him accepting a trip from a hedge fund manager who had a case related to his hedge fund before the Supreme Court. And actually, I will also add, because this was a particular concern to me, that Justice Thomas arguably should have recused himself from cases involving the January 6th Commission due to his wife’s – the investigation of his wife by that same commission.
Risa Goluboff: Richard, are there other incidents or stories that you think should be in our universe, you know, as we get started before we turn to what rules there are?
Richard Re: Well, I'll just look a little bit further back in time, maybe a little broader beyond the present controversy, which I think is very important in its own right. So some years ago, listeners may remember when Justice Ginsburg had an interview in which she opined critically on then candidate Donald Trump, which seemed to be a violation of the normal rules that would apply to federal judges with respect to expressing political views on pending elections and candidates. And there was a significant discussion at the time, and the Justice eventually apologized for those remarks. Zooming back further from the Supreme Court, there's a lot of, uh, discussion about judges engaging in inappropriate conduct in chambers with their subordinates. There is discussion about judges taking advantage of the work of their employees to promote their own interests, somewhat along the lines of the story involving Justice Sotomayor that Amanda mentioned. So this is an issue that's very salient now for a variety of reasons, but it's a much more long-running, uh, set of concerns and I think that's part of why Amanda's research on this topic that goes back over a decade now is so useful because it's, it's looking at the long-term and thinking about these questions deeply.
Risa Goluboff: Great. So, I mean, it seems like there are political concerns, there are case-related concerns, there are financial concerns, right? There are relationships to the public sphere. So there are a lot of different ways in which ethical questions come up for the court. Okay, so there are some longstanding ethical rules that apply to judges. Do they apply to the Supreme Court? How do they apply to the Supreme Court? Amanda?
Amanda Frost: Yeah, so, there's a couple of different rules that apply to the Supreme Court, and then there's a few that apply only to the lower federal courts. So, in a nutshell, the Supreme Court justices must recuse themselves under a statute that applies to the entire federal judiciary, including the justices. The Supreme Court justices also must disclose various gifts and other financial transactions, just like all federal judges and all federal employees. But they are not covered by this code of conduct that the lower federal courts were governed by, nor were they covered by a federal law that established a complaint process by which lower federal court judges could be subject to complaints that would be investigated and could lead to sanctions. Of course, the Supreme Court very recently issued a code of conduct for itself.
Risa Goluboff: Great, so let’s talk about what this new, uh, code of conduct says.
Richard Re: I was a little bit surprised at how rapidly it went from kind of being on the back burner to being something that several justices were talking about in public statements. And all of a sudden, boom, we have it. And I think the basic theme of it is that the justices are trying to take the normal code for federal judges and adapt it, at least ostensibly in order to account for their unique institutional position. And I think their idea is that they deserve a little – or need maybe – a little bit more wiggle room in order to get their specific job done than the typical federal court judge. But otherwise, I think they're trying to translate those principles to themselves.
Risa Goluboff: Where do you see the significant departures from the rules for other judges, you know, the kind of play in the joints that you're talking about, Richard?
Richard Re: One thing that kind of leaps off the page is that there's a stronger rule of necessity according to the justices with respect to recusal. The idea is that they don't want to have a short-staffed court, which you might think is not even that big a problem, going from 9 to 8. It might not be the end of the world for one case every now and then. But the justices make a point in the statement of emphasizing that full participation is very important to their deliberations. One might also think it's important to their democratic pedigree. I think part of it has got to be also a big worry about manipulative recusal situations where someone does something or a case is designed in such a way that could trigger a recusal and maybe change even the outcome of the case in a closely divided case.
Risa Goluboff: Amanda, what would you add?
Amanda Frost: I think the differences in the recusal standard are really important. And, I have to say I was disturbed by them. First of all, recusal is not like a voluntary idea that the justice have for themselves. It is a statute – 28 USC section 455 – enacted by Congress that binds them and it sets the recusal standard for all the courts without any special or different treatment for Supreme Court justices. And the duty to sit, which is this rule of necessity, just using another term, is something that the House of Representatives in its legislative history said it rejected. And it's certainly nowhere in the text, the idea that the justices should be treated differently because they are a court of nine. Richard mentioned, you know, going down to eight justices is something that happens occasionally and it does. They occasionally have reasons to not be able to sit on a case and they're down to eight, and you know, the world doesn't fall apart. I'll also remind people that for a whole year, we had eight justices because the Senate didn't confirm a replacement when Justice Scalia died and it didn't seem to create a crisis then either. So, I'm skeptical of this duty to sit, which as I said, is nowhere in the statute that binds them.
Risa Goluboff: Yeah, there's a period in the early 70s before Justice Powell and Justice Rehnquist come onto the court, when there are seven justices for a while who decide a whole bunch of opinions. They choose not to decide some, they hold over Roe v. Wade, but they decide lots of other, important cases like Papachristou. Anyway, that's just to say we don't always have nine justices.
Amanda Frost: One other thing I wanted to say related to this code that the justices created for themselves is that I was both heartened that they did it. I think it showed a responsiveness to what I would say is a crisis with the court's legitimacy and a sense that they are not above all public, you know, opinion or accountability, which I think is quite important, even though I, of course, I respect their decisional independence, I think as an institution they need to be accountable. But I was disturbed by various aspects of the code, most notably the introduction, which described it as trying to correct a quote misunderstanding that the public had that they weren't following a code. I found that disturbing just because I think they had been violating some of the provisions they put in here. I'm delighted they put them in here. I hope this means they will follow them going forward, but to refer to the sort of set of news stories that had come before this as misunderstandings I think is inaccurate. They had not been following this set of guidelines in the past, at least some of them.
Richard Re: Well, you know, it's interesting you say that Amanda, because I think the misunderstanding is supposedly that there is no code applicable to the justices.
Amanda Frost: Yeah.
Richard Re: I take the cover note to be saying that nothing is changing, we're just codifying something that was already there. Do you think that's right?
Amanda Frost: Yes, and to try to maybe be as sympathetic as possible to the nine of them in this endeavor and the chief justice in particular, maybe a statement like that at the start was what was needed to allow for all nine to sign on to this. And I agree with you that they seem to be saying this has always been the rules we've been following. It was just odd to read it when clearly some had not been following this maybe inadvertently or due to sloppiness, but I, there were clear violations, including you know Sotomayor using staff to engage in selling her book, which appears by this code to be prohibited. And of course, some of the acceptance of gifts by Justice Thomas as well.
Richard Re: Yeah, I also wonder if, to some extent violations in the past, the extent that justices think there have been some, maybe about their colleagues, if not about themselves could have been regretted.
Amanda Frost: Yeah.
Richard Re: I wonder, for example, in the example you gave with Justice Sotomayor, there's not been an exhaustive investigation into those allegations quite understandably, but I think what's publicly known leaves it kind of unclear to me, at least, to what degree she was involved. And so maybe there's room for some criticism there, but not, the potentially stronger label of, of an ethics violation. By the way, I just love this, this discussion because Amanda and I just run into each other and start talking about these kinds of things. And I always learn so much from these exchanges. And I, I always come into them thinking that I'm going to entirely agree with Amanda, and instead I partially agree, learn something and partially disagree is kind of the dynamic that we've fallen into.
Amanda Frost: (laughing) I’ve been, like, late to class because of Richard.
Risa Goluboff: No, maybe it's not that we're reconstructing the faculty workshop, we're reconstructing the hallway conversation. Right?
Richard Re: Yes, exactly.
Risa Goluboff: Richard, I'm curious. Amanda has staked out the position that there have been violations, right? Like, that's a pretty clear statement that you just made Amanda. Do you agree with that Richard, or would you be more circumspect in describing, you know, what has come before?
Richard Re: I do think that with some of the more salient allegations, there are reasons for caution. I think the norms about what judges can do have in many ways appropriately been changing quite a bit in the last 5, 10, 15 years. I think that some of these principles that the cover note says were customary practices maybe seemed legitimate if all relevant actors were kind of acting in a certain way. And maybe people didn't realize other ways of interpreting ambiguous principles. I guess all that's just to say that, that I would be, I would be careful, about that conclusion.
Risa Goluboff: Amanda, do you think norms have been changing but they're clear, or do you think they've been more static?
Amanda Frost: Yeah. So I think, one, I think the Supreme Court has been out of step with the norms governing Washington, D.C. – the federal government – for a long time. And in fact, I tell my students a story about how I would invite congressional staffers into my classroom to lecture to students, you know, spending several hours of their busy days doing that, and then I would try to buy them a turkey sandwich in our law school cafeteria – not the UVA cafeteria, but a lesser cafeteria that wasn't so great – and I couldn't even do that. They would refuse to accept the purchase of, like, a seven dollar sandwich because they were so careful to avoid any acceptance of a gift. And to come from that environment and then see nine justices accepting plane rides and vacations struck me as deeply problematic. And I would say the Justice Thomas allegations to me cleared a bar where it was pretty clear that there'd been violations. And just looking at this code, the one that justices just produced for themselves, Canon 4G said, 'A justice should not to a substantial degree use judicial chambers, resources, or staff to engage in activities that do not materially support official functions.' I think that's a rule that has been violated. And so, I'm glad they put in writing they won't do that, but I, I think we could fairly say that there's been violations of that in the past. So, maybe the justices felt the need not to acknowledge these past problems and just move forward. And if they do clean up their act, then I'm, I'm in favor of that. I'd rather just see change being made than going back over old problems. But I'm a little concerned that they haven't acknowledged these past problems.
Risa Goluboff: Go ahead Richard.
Richard Re: One kind of question someone can have about whether there's been a past violation is whether there's an applicable norm. So with the Justice Ginsburg example I mentioned earlier, I think everyone agrees if she had not been a Supreme Court justice, but a different federal judge, that would have been a cut-and-dried, unambiguous violation of the code. I see Amanda's agreeing with that.
Amanda Frost: A hundred percent.
Richard Re: I think the only ambiguity there was whether that norm applied to her as a Supreme Court justice. And I think in light of this code, we now know that it would. With other principles, I think there are other kinds of uncertainty. So it could be that there's a, a term of the regulation that could be ambiguous. We've seen some justices kind of almost litigating about, you know, how to construe a certain term in a certain way. Another kind of ambiguity is that there could be countervening constitutional principles that actually cabin some of these rules that have been legislated or otherwise imposed on the justices. And I thought that was a really interesting point you were making before Amanda about the recusal provision. seems like maybe there's a kind of under the hood constitutional construction going on here with respect to the recusal statute on your view, which I think is really fascinating. And so that's another layer of, or source of potentially of, of uncertainty about whether there's been a, a violation. And the last thing I'd just say is that a lot of these allegations involve lots of different potential problems, which is not to minimize them at all, but to complicate them. So you mentioned some of the allegations surrounding Justice Thomas. A couple different things going on there. One thing is receiving the benefit. Another thing is receiving the benefit and not disclosing it.
Amanda Frost: Yup.
Richard Re: And I think that Justice Thomas himself, through his actions, has demonstrated that even he agrees that he should have disclosed some of these events, and has retroactively attempted to correct the record on those disclosures. So, that might be kind of in keeping with maybe Justice Ginsburg's apology for her comments regarding candidate Trump. I guess I'd be curious to hear what you think about that kind of scenario where the justice maybe realizes — whether thomas or Ginsburg — that something was a little bit awry themselves and what label do we give that and what response if any should we have to that?
Amanda Frost: Yes. And I do think, you know, Justice Thomas recently released a financial disclosure form that I think used the words "inadvertently omitted" — 18 times, I counted. Um, so he is correcting the record in terms of disclosure, but I do think accepting the gift is part of the problem. And again, that's where I think the court is out of step with the rest of the federal government. The Senate and the House aren't allowed to accept gifts from people other than close friends and family. And then they have to get a ethics review committee or fill out a form to get approval to accept those gifts. So I think the very acceptance of the gift by the justices is part of the problem, but yes, disclosure is what's mandated by law. And that's what he retroactively attempted to do. And then just to sort of pivot to your point about this recusal function being inherently judicial and maybe beyond Congress's power to regulate, I think that's a really interesting question, and I will say when I was reading this code of ethics, the Supreme Court said — they call it the quote, "inherently judicial function of recusal" end quote — and that was like sending the message that this is something they don't think Congress has power over, perhaps in the way that Congress thinks it does, congress has legislated. So I'd be curious, Richard, your thought on any limits on Congress's power to regulate recusal?
Richard Re: I think that some of your writings on this set a kind of basic principle that I think we agree on which Is that Congress has significant regulatory authority here, but also that it's checked by some kind of structural principle regarding judicial independence and impartiality and maybe power, frankly, that there's a constitutional value in having a, a third branch — it's not first or second, but it's still one of the three, one of the big three. And whether we express that intuition pursuant to the necessary and proper cause that maybe it's not necessary and proper for Congress to, uh, impose certain regulations or whether we think it's a freestanding element of judicial power in article three or something else, wherever we kind of textually try to locate it, there has to be some kind of counterweight there. Uh, at least I would say so. And I think in some form you would agree with that too. And so if there is that foundational agreement, it seems like the justices are going to have a big say in how that autonomy principle of judicial power independence is deployed, is developed. I think that's appropriate. And I do worry about the possibility of well-intentioned, even potentially good regulation of judicial ethics, not having the desired effect. One form of that I mentioned earlier, which is that there could be regulations that just quickly become gamed by political partisan actors – actors that are corporate interests, whatever interests you want, to manipulate the court. And judicial ethics become strings that allow people to control the justices.
Amanda Frost: I really share your thoughtful concern about the weaponization of ethics rules. And here we can learn something from the states, which their high courts tend to be subject to more ethical rules and more oversight. And sometimes that's worked well, and sometimes that has indeed resulted in partisan use or ideological use of these ethics rules — not to ensure an ethical judiciary, but rather to control outcomes of cases. So, I share that concern. I will say, you know, I've been talking about this issue for a long time and at the start, I was like, well, we don't want the cure to be worse than the disease, right? We don't want whatever ethics rule we put in place to be worse than the problem we're addressing. But the disease has been getting worse and worse from my perspective. it's got to the point where I'm like, you know, now I'm willing to take a cure that has some potential downsides because I see the disease, which is a branch that appears to see itself as above all accountability as a problem and a big problem and one that needs to be addressed both, you know, for the sake of the cases and the function of the court, but also the legitimacy of the courts going forward. I think you know, you and I share a great respect and love for the courts and a sense of their vital role in our democracy. And it pains me to see the Supreme Court lose stature because of these problems.
Risa Goluboff: Can one of you give an example or examples of what you mean by the weaponization of judicial ethics rules were they to be regulated by Congress? What does that look like in the states, or in a hypothetical?
Richard Re: I think you have a great example at the tip of your tongue there. So why don't you go.
Amanda Frost: No, I was going to say, but I feel like it's your primary concern.
Richard Re: Well, I mean, so there's a, I don't have the specifics at my fingertips, but one example that comes to mind is there was a case involving the takings power pending at the Supreme Court and Justice Stevens had some property in Florida that was potentially implicated by the case. And so, an interested actor found that out and publicized it at the 11th hour, and so Justice Stevens suddenly is off the case. And I don't think it had that much of an effect on that actual case as it happened, but you can imagine that kind of scenario becoming generalized. So you can imagine a situation where certain cases are brought and pursued, and maybe someone knows that at the right moment you can find out that so-and-so has a family member, so-and-so did something, so and so owns something, and then at a critical moment, the court is faced with a choice: well, do we decide this case short staffed that is ready to be decided and maybe has to be decided quickly, or do we wait for another case that may never come? You can imagine that kind of gamesmanship taking place and I think Amanda has some other examples.
Amanda Frost: Yeah, and certainly at the state level, there's been some examples of maybe people newly added to the judiciary who the political powers are not so pleased with and then they're seeking ways to get them knocked off cases through recusal or to question, you know, pretty minor ethical lapses as maybe a screen for they just don't like that person's jurisprudence, and I certainly see that as a concern. I will say we have some experience with the Judicial Conduct and Disability Act, which governs the lower federal courts, and granted, they're different in some important ways, but I think for the most part that statute has worked not beautifully in every instance, but on the whole, it's worked. And so, for example, anyone can file a complaint against a lower federal court judge, but the chief judge reviews it and only refers for an investigation, meritorious complaints. And the vast majority are immediately dismissed because they're by some disgruntled, you know, loser in a case, right, who lost the case and then files a complaint against the judge. And it's clearly not really about ethics and the chief judge really has no problem getting rid of the vast majority of those frivolous complaints and then there's an investigation of the ones that pass that threshold test of being worth looking into. So I'd like to think we could have something similar working at the Supreme Court.
Amanda Frost: Richard, I think we may disagree here which is great because we agree on a lot but it's nice to lean into where we might disagree just to flesh out those issues. With recusal, I think a way to protect against that would be to have all nine vote on the recusal of the one who's being questioned. And granted I can see issues with that as well, but I think it's better than what we have now.
Richard Re: The question might be better than what? The proposal of having the justices vote on one another's recusal is, is a very problematic thing to do. You know, kind of paradoxically, it has two kind of equilibria scenarios that evolve from that. So one equilibrium is they just rubber stamp everything, whatever the justice decides to do themselves, they're all colleagues, they're all having lunch all the time, they're all looking for each other's votes, they're all in the same elite group, so whatever Sam says, whatever Elena says, whatever it's just and that's kind of a failure. But then the other type of equilibrium outcome I can envision is there's a justice who's really unpopular, who's cranky, who maybe is so close to flipping outcomes that some justices really care about or some combination of these things. And so you have justices who are really changing the composition of the court functionally by deciding that in a key moment, maybe so-and-so can't vote. And then, you know, that would, I think not only be inherently bad, but it would look really bad. If this reform is going to have any effect in practice, it's often, I think going to end up having an effect in a case that could be characterized in my second category. So I think that having the watchers watch each other here, I think is for me a very dangerous game.
Amanda Frost: And I hear you. I didn't come to this lightly, but only after seeing what I thought were some really problematic decisions not to recuse in our recent past. But let me just say, the premise of the point you just made, which is that the justices would recuse, at least five, right, would vote to recuse a colleague not because they had violated the recusal statute by claiming a right to sit on the case, but rather because they just didn't like the person or didn't like their vote. If that's what five of them would do in a recusal situation, they would have five votes to just decide the case the way they wanted, regardless of what the law said. It’s a concern that they would behave lawlessly in the recusal context, in which case, like, all hope is lost. Right?
Richard Re: I'm not sure it has to be that stark of a situation. I see a lot of gray in a lot of these scenarios.
Amanda Frost: Okay.
Richard Re: I don't think it has to be the stark version of justices just getting together in kind of a conclave and voting conspiratorially. I think that it could be a situation where there's a, maybe a arguably borderline case, and then it goes a certain way, and certain justices, you know, it could be a coalition, you know, four who are just very strict about recusal, and they don't care about the context, and then one says, oh, wow, this is a chance for me to, to get my outcome, boom. That would be how, maybe, correctly or incorrectly, many people would perceive it, and, and how people would have an incentive to characterize it that way, also, because that's a form of gaming, is a form of, of undermining the integrity of the court, is people that accuse the court of this kind of, manipulative behavior.
Amanda Frost: Yeah. I And I hear you on those concerns. I guess the way it would work ideally would be that, of course, each justice would then step aside when they should, knowing their colleagues will review it with that extra thoughtfulness and extra care taken to avoid putting their colleagues in the position of voting in a closed case in a way that doesn't seem to be happening now. So, you know, allowing each justice, of course, to step aside without calling on their colleagues to vote, would just give that justice another minute to think about it and think, “Do I really want my colleagues to review this? And have I really looked closely enough at the potential conflict here?”
Richard Re: This also brings up, by the way, the third, third possible thing, which is it, it works maybe the way you desire in the moment, but then you have a poisoned relationship and acrimony developing thereafter, is kind of another piece of this.
Amanda Frost: Your point about collegiality I think is important, although I will note that they seem to say really harsh things to each other in their opinions all the time. I mean, was it Scalia said like, “I'd hide my head in a paper bag if I wrote this opinion” when it came to the, was it Obergefell?
Richard Re: Mm-hmm.
Amanda Frost: They seem to be willing to take somewhat personal shots at each other and their opinions, such that I'm not so afraid for them, and of course, they decide these extraordinarily sensitive questions for the nation about abortion and immigration and same-sex marriage, and maybe they should feel a little uncomfortable now and again, like that's sort of the price of the job. Maybe it's a little awkward to bump into someone in the hallway because you're a Supreme Court justice and they are too. I'm willing to live with that.
Risa Goluboff: So one of the other uh, suggestions you've made, I think Amanda, is the idea that there might be an inspector general who would help navigate these decisions. Can you say a little bit more about that?
Amanda Frost: Yeah. And I'll just say that this is a suggestion floating out there with lots of different people suggesting it, including a couple of Republicans in years past. and the idea is that there would be an inspector general for the entire Article III, all the federal courts, who could do a couple of things. That person could, one, advise the judges and justices on their ethical obligations. And I think one of the things we've seen is they're not getting good advice. In fact, Justice Thomas said like, “A colleague told me that not reporting was just fine because it was personal, you know, hospitality.” And that was just wrong. Maybe he did get that from a colleague, but he needed a better source of advice. So one, just a person whose job it was to follow these rules and understand them and apply them and help the justices and judges with them. And then to recommend if there is a need for any sort of sanction or discipline. And I think that could be quite helpful, and could be a way in which the court could be regulated, not directly by Congress, but through a mechanism of a sort of third party overseeing and reviewing what the court does. So that's at least a potential solution and a potential enforcement mechanism, but I'd love to hear what Richard thinks about it.
Richard Re: This one also is intriguing. I like the version you started with Amanda most where maybe it wouldn't be an inspector general anymore, but maybe a counselor – a special counselor – who has some sort of institutional role in giving advice and maybe even issuing opinion letters or something like that. I think that's very intriguing. But the more muscular the position is, the more worried I get again, uh, and so one worry I have is that the person's captured because maybe they're appointed by or controlled by or have their bread buttered by the justices. And so then you're going to have a failure of one type. And the other type is they're not beholden to the justices, but then they have nothing to do unless they make hay. And so they start making hay, kind of like the independent prosecutor scenario that we saw in the ’90s. And so there's just someone kind of always making trouble for the Supreme Court where there doesn't need to be. So I think that, is another kind of problem scenario that also emerges from the question of what are the incentives of the relevant watchdog, and how are they aligned or dis-aligned with the justices?
Amanda Frost: No, you make really good points. I'll just say though, always like, compare what do we have today, and today I feel like our inspector general is ProPublica, and the media, and that's a problem. I mean, I think they've actually done a very valuable service. And there's sort of this old guard Supreme Court set of journalists who had not been digging into these stories and ProPublica really broke open their field and started investigating and shedding light on things that frankly should have come to light earlier and woke up the media. But I don't think the media is the best place to go for overseeing government, especially because there's been accusations that they're partisan in their approach, which I see them also criticizing justices appointed by, you know, Democrats or viewed as left-leaning like Sotomayor. But to the degree there is that accusation, an inspector general could be a more neutral party and certainly better than the news media in being that oversight mechanism for the court, better for the court, better for its reputation for it to get on top of these stories rather than have them breaking in ProPublica and other newspapers.
Richard Re: Can I just say something about that, because I think that kind of goes to this, thing I've been, noodling about whether the norms have changed, what it means for the norms to have changed, and where some things that maybe people, especially elites, were willing to smile about, and now they're not so willing to smile about it, they want to do an investigative report on it now. Because you might think that code itself, as you mentioned before, the cover letter indicates explicitly it was provoked by public criticism. And so, you know, there's no rigid sanction there. There's not an official censure. There's not a, removal from office, certainly not a reduction of duties, not a reduction in pay, nothing like that. And yet we have what seems like some kind of check and balance happening because the justices care about their public esteem. And you might think that that kind of norm-based social stigma discipline is part of what's happening in general now. And when one justice is thinking about whether to recuse, or the justices as a whole are thinking about whether to have a code of ethics or whatever it may be, they're thinking, well, “How will this affect my public esteem or professional status or something like that?” And I think about, like, what's the best option that has to be on the table, I think, as a nontrivial form of restraint.
Amanda Frost: Wouldn't you say, Richard, I mean, surely, at least eight of them, maybe all nine, would now hesitate to take a free private jet offered by a friend or an acquaintance somewhere. I feel like maybe the news media has served that purpose of the inspector general in the sense that they will think twice now. Is that your point there, there's now a sort of checking function just by the reporting alone that means we don't need more official forms of sanction or oversight?
Richard Re: I think at least at the reporting level, maybe at the level of whether to do it, there has been, yeah, a change in behavior because of a kind of criticism. So, so I guess one way to think of it is the scale and severity of the norms or the rules has to be considered in light of the sanctions and responses attending to them. And so a lot of my concerns are not so serious if the consequences are diminished. In other words, it's, much more, in some ways, attractive or easy to have a lot of rules that specify this and that and cover a lot of ground, if at the end of the day, like with Justice Ginsburg, she got some op-eds, you know, the New York Times wrote an op-ed, an editorial actually, saying that she violated ethical obligations. That was the kind of sanction that she endured there. But that's it. Nothing else. She didn't recuse from any cases. She still, you know, heard every case involving the Trump administration. She certainly didn't leave office over that. You know, that's one model that I think is nontrivial in effect.
Amanda Frost: Yeah, and I agree except my only concern there is that was the very justification that I think Congress initially had when it didn't subject the Supreme Court to the Judicial Conduct and Disability Act. It sort of said, all right, this is for the lower court judges, but the nine Supreme Court justices are so in the public eye and they're so carefully vetted that we don't think they will violate these ethical rules. And that has been proven wrong. And I hesitate to say, well, it's all going to be okay going forward because ProPublica discovered it and now they seem like they're a little more concerned because frankly, I just don't want to rely only on the press to uncover these problems. Journalism is under attack and under fire, and I just feel like we need stronger accountability mechanisms than just some enterprising reporters.
Richard Re: I agree.
Risa Goluboff: What kind of mechanisms are appropriate? And I was thinking even before you just said that, Richard, that there's obviously a relationship between how willing one might be to identify or call something a violation and the nature of the sanction that's going to follow, right? Let’s talk about the sanctions - talk about the sanctions and the mechanisms.
Amanda Frost: Well, I'd love Richard to talk about his super thoughtful op-ed that he's working on, which I find really intriguing, although constitutionally I question it, but I certainly like the idea behind it. So I'll, I'll let Richard describe it.
Richard Re: We might have a role reversal here because when, when we're looking retroactively, I tend to be cautious. But then if we switch the, the lens to being prospective and we have created rules and there's kind of notice and due process and so forth, then I, I too am attracted to the idea of – at least in extreme cases – having a real sanction and the constitutional shoal here, or the most obvious one is that the justices, like all Article III judges have tenure. They get to serve in office, uh, as long as they exhibit good behavior under the constitutional standard. And so you might think that the only remedy for a violation is impeachment, which is certainly a remedy and certainly a very important one and it's contemplated by the Constitution. But for part of the reasons I think Amanda may have been alluding to before, we have maybe a, polarized culture now in a way that makes it hard for there to be a single legal culture to have social stigma applied. It also makes it hard for there to be a supermajority vote to remove an Article III judge from office in many cases, even where maybe a lot of people think that would be appropriate, maybe most people think that would be appropriate. And so the idea that, that I started to think about in the context of judicial retirements is that judges might be able to resign In a way that is binding. In other words, they might say, “I commit to resigning in, say, 10 years.” And you might think that could be a binding commitment they make. And so in the context of judicial term limits, I thought by having these binding resignation letters, justices could opt in to term limits by committing to resign according to a schedule. And so then, Ian Ayres, a professor at Yale Law School, got in touch with me about that. And we thought, well, why limit this idea of binding resignations if it works in the term limit context – a big if – why limit it there? Why not also apply it in the context of judicial ethics? And so that's the basic idea. In other words, a justice might say not just, you know, “We agree to statement of a code of conduct,” as they've done, a justice could say, or all the justices could say, “We actually commit in a binding way to leave office in the event that a certain event occurs.” And the event might be that the Judicial Council, a body that already exists to discipline lower federal court judges, concludes that we should leave office. And so this would be a way to, at least the theory is, this would be a way to allow the justices to submit themselves to a form of external discipline very similar to what already exists for lower federal courts, but with the added bite that in an extreme case, if properly defined, it would be possible for them to leave office without impeachment.
Amanda Frost: Yeah. And I just love this idea. I think it's so creative, so thinking outside the box. So like a remedy that had not been suggested and that sort of moves the conversation forward. So I love it in many ways. And I want to give a plug for is it the Iowa Online Law Review where you wrote about this in more detail?
Richard Re: Mm-hmm.
Amanda Frost: Very interesting, but I just want to sort of move to the next step. What I love about it is the justice, under your proposal, would sort of publicly declare, “I will resign if this council finds I violated an ethics rule.” And also as a term limit mechanism, like in 20 years or something like that. And they say that at their confirmation hearing. So they're really bound to that statement. The problem is what if they don't? And in the Iowa Law Review piece, you said like, “Well, Congress could take away their funding for like all staff, etcetera.” You could imagine them sort of huddled in a, you know, a chambers without any heat and any staff, still trying to hold on to power. I think we come down to this enforcement problem: without impeachment what could Congress do? And some control of the budget is one possibility, but is there anything else? Or do you think just the fact they had to declare they would do it means they must and will step aside if that occasion arises?
Richard Re: I was kind of imagining a hardball scenario because I like to consider worst-case scenarios. This is a real theme for me, I'm always thinking about the worst-case scenario for all these reforms. And so I think it would be very reasonable to respond to my proposal in that article by saying, “Well, even if it is legally right, Richard, the justice will just say, I'm not leaving.” You know, much as you could imagine that happening in real life with a normal resignation. A justice could say on Monday, “I resign.” And on Tuesday, they say, “I'm never coming out of this office.” And so in that kind of hardball scenario, then it's when I imagine a kind of, um, exertion of other sticks to move things.
Amanda Frost: And the reason I raise that is, you know, again, I don't want to get you into the weeds of individual justices, but I do feel like Justice Thomas, and I was most concerned by his refusal to recuse in January 6th-related cases when his wife was under investigation. To me, that's a clear violation of the recusal statute. So, you might disagree, but if a justice clearly violates written, statutory obligation, then I've sort of lost hope that they would follow their promise to resign upon a judicial council finding them to have violated ethics rules. That's my concern. So really, I feel we'd have to go to your, like, hardcore enforcement mechanism of no funding by Congress, more often than you might think we would. But, you know, you suggest that's a remedy, a potential possible remedy, which I agree would be a good one.
Richard Re: One thing that that scenario raises for me is the due process kind of point about how we find out whether there's been a violation. And so if the stakes are that Justice Thomas gets criticized a lot in public for not recusing in that case involving a subpoena where the subpoena may have disclosed — or would have disclosed I guess we now know — emails involving his spouse, if the sanction is criticism, that seems not such a big concern to me, and maybe it may be good, but if the sanction is the one with teeth, if the sanction is, you can't sit on cases for a while, or you maybe have to leave office, then we have to look at it quite differently. I think the kind of due process that comes in with the lower court judges under the current regime would be appropriate, where you have to have a complaint, you have formal notice. There wasn't even a motion to recuse, I think, in the case that you're talking about with Justice Thomas. So he wasn't put on any kind of formal notice there. So I think that's kind of one element that's, that's raised by the hypothetical.
Amanda Frost: Mm-hmm.
Richard Re: But when you say that because Thomas didn't recuse there and you think he should have, and let's assume that he was on notice, despite my concerns about that, then why would he ever leave office except voluntarily? I think there's just a lot of different influences on individual behavior. And so, one influence is if everyone thinks that the legal consequence is X, or many people think the legal consequence is X, that matters.
Amanda Frost: Yeah.
Richard Re: Another kind of influence is: is there someone coming to my office telling me that I have to leave the building right now? This is not an unheard-of workspace problem that arises. And the problem of people not wanting to leave a place where they have no legal right to be is uncomfortable and it's challenging, but it's one we navigate in a lot of different contexts.
Amanda Frost: I think if we're talking about someone coming to remove them, we're talking about a serious constitutional crisis. So, I would want to maybe avoid that. I think the justices should police each other more. And I was very frustrated early in the fall before the ProPublica stories about Justice Thomas’ failure to recuse in some of these January 6th cases. And I said, his colleagues know that he's violating these statutes and there's things they could do. And in fact, in history of the court, there's precedent for the justices deciding, for example, when Justice Douglas had a stroke and was cognitively impaired, not to let him be the deciding vote in cases. I think it was seven of them agreed to that. So I feel like the justices could respond to each other's violations in ways that they are not, I'm sure to maintain collegiality. But at some point, if you care about the institution, you have the power as a single member of that court or as a group of justices to either publicly make a statement or to control, for example, who gets to decide the case. So I agree that's an extreme potential remedy, but if we need a remedy, that is one that exists. But I'm guessing you disagree.
Richard Re: Well, I think the example you're talking about with Justice Douglas, to me is not a model to be repeated. It feels like a near miss, and I think it's easy to imagine that kind of dynamic going quite differently with different personalities involved. I mean, there was a justice who thought that the decision to rearrange the calendar was unconstitutional because the justices were basically removing the commission of one of their colleagues in a completely secret conclave. I mean, frankly, it, there's a, there's a lot about that that's very strange and it makes you wonder about what other kinds of secret conclaves could form and influence the development of the law if that one could form. So I, I don't find that example, entirely reassuring. I do think that it's an example maybe along the other lines about recalcitrance because, Douglas also tried to not leave, reportedly. And so there had to be some extra maneuvering to kind of talk him down from his perch a little bit. And I think that just goes to show again that this problem of hardball and, and people not wanting to let go is one that we face with or without the kind of proposal that Ian Ayers and I are talking about.
Amanda Frost: Well, and I hear you that that was an extreme event, his stroke and their decision to not allow him to be the deciding vote in various cases. I agree it could be troubling. I actually very much agree that it shouldn't have been secretive. So I would want any future move like that by the justices to be public. But I do think, you know, extreme behavior needs a response and we may disagree about what would trigger that, but that's where I come from. You know, if I see a justice blatantly violating recusal obligations, I want to see some response. And if not by Congress, then by the court itself.
Risa Goluboff: So one thing we've touched on, but I wanted to talk about some more, which has been the subject of a lot of conversation and public discourse is the extent to which Congress has the authority to regulate the court and the ethics of the court in particular, obviously it has the authority to regulate certain aspects, but particularly when we're talking about ethics, and, you know, what is the scope of that? What are the limitations of that? What does that look like? Amanda?
Amanda Frost: This is a topic that really, made headlines because Justice Alito said, a couple months ago that he didn't think Congress had the power to regulate the court. And so I've taken the position that Congress very much has the power to regulate judicial ethics and extrajudicial conduct, of course, being very careful to preserve decisional independence. So I don't think Congress can enact legislation to control outcomes of cases. And that's where there can be some hard and close questions. I don't think the current recusal statute or the oath of office or the code of conduct transgresses those boundaries, but I do recognize that there could be hypothetical situations that come close to the line.
Richard Re: I'll toss out such a hypothetical that I'd love to get Amanda's further thoughts on. So imagine that during the pendency of the recent student loan cases, Congress passed a statute specifying exactly that recusal is required when certain justice's family members have certain types of interests in student loans. This hypothetical is inspired by some of the commentary the justices gave to the recent code of conduct. And in that kind of scenario, you can imagine that what the legislature is really doing is picking who gets to sit on the case because they may be able to look at the facts on the ground and realize exactly who will and will not be recused by this new mandatory recusal rule.
Amanda Frost: Yeah, so, that’s a fascinating hypothetical. It does bring us right up to that line of the concerns about Congress abusing its power overregulating extrajudicial conduct to really try to interfere with the results of cases. I'll just sort of take a sort of 10,000-foot view for one second and say, of course, that's a problem in lots of different constitutional law cases. Like, there's a permissible reason Congress legislates and maybe an impermissible motive. And how much do we look behind the text of the statute to figure out whether there was animus or a constitutionally impermissible motive to that legislation. So it's like an ever-present problem. And I would say, I guess I feel like we can address that problem as it arises. So if Congress tries to enact a new recusal statute or provision that seems to target very explicitly certain justices whose votes we think are likely to come out, say, against the way that the majority of the Congress prefers, I think that's going to pretty evident. It's going to be hard to hide that. I trust the court to say, just as it does in other types of constitutional cases, “No, we don't think this legislation should be evaluated purely on face value. We can see underlying it an impermissible motive, which is to control the decisions of this court. And for that reason, we reject that legislation as unconstitutional,” just as it does in cases where it's looking for animus behind statutes and other regulations and government action.
Richard Re: It's really interesting to imagine that what would happen then is that you would have this decision about the constitutionality of the statute potentially while the case that's at stake is also pending.
Amanda Frost: Yep.
Richard Re: And so that's another way that operative influence of the legislative manipulation is kind of entwined with the permissibility of the regulation itself.
Amanda Frost: Yep. And every time we talk about Congress's power to regulate, especially when we have someone like Justice Alito saying Congress lacks the power, and the chief justice also seemed to question that in an annual report a few years ago. You know, I could argue all, till I'm blue in the face, that Congress has the power to regulate, but who gets to decide that? Five members of the Supreme Court decide whether Congress can regulate them. So, it's in some ways a circular analysis, but at least under current jurisprudence and my understanding of the Constitution and the relationship between the branches, Congress can and should do it when needed.
Richard Re: That's really interesting point you just made, Amanda, about will the justice have the last word on this no matter what, kind of? And you know, you might think not really, because that's kind of a judicial supremacist mindset, and maybe these ethics debates are happening in the context of other discussions of court reform, and other challenges to the court's role, and even challenges to judicial supremacy. And we might have a bunch of different changes in our legal culture and maybe in the institutional structure of the courts happening in tandem with discussions of judicial ethics. For example, maybe part of what's really going on with this cover note on the code of conduct that the justices just promulgated is that think there's a nontrivial chance, perhaps, of some much stronger form of court reform, like a jurisdiction-stripping or changing the size of the court or something like that. And that's in their minds too, when they're trying to correct the record about their ethical duties.
Amanda Frost: Yes, I think that the justices quite wisely tried to get out in front of this issue and tried to avoid what they feared, which would be congressional legislation. And that would be the best result – for the court to regulate itself.
Richard Re: I agree with that! That's a wonderful point of agreement.
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Risa Goluboff: Great place to end. Thank you both so much for coming on today. This has been just a wonderful, wonderful discussion.
Amanda Frost: Thank you very much for having us.
Richard Re: Thank you both.
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Risa Goluboff: That wraps up this episode of Common Law. If you want to find out more about Amanda Frost or Richard Re's work, visit our website, Common Law Podcast dot com. There, you'll also find all of our previous episodes and more. We hope you'll join us next time to hear another free exchange and more explorations of how law shapes our lives. I'm Risa Goluboff. Thanks for listening.
Credits: Do you enjoy Common Law? If so, please leave us a review on Apple Podcasts, Stitcher, or wherever you listen to the show. That helps other listeners find us. Common Law is a production of the University of Virginia School of Law and is produced by Emily Richardson-Lorente and Mary Wood.
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