President Joe Biden’s proposal for the Supreme Court would take time to implement but a good start to the conversation about potential reform, experts say, while local officials fall along party lines in response to the proposed term limits and code of conduct.
Charles Geyh, a professor at the Indiana University Maurer School of Law who has written about judicial conduct, ethics and impartiality for over 30 years, said while the proposal won’t be implemented immediately, talking about when Supreme Court justices need to recuse themselves and whether there should be term limits is a healthy discussion to have.
“These are important proposals in the sense that we need to start thinking as we never have before about ways in which the Supreme Court can be brought into the fold with the American judiciary,” Geyh said. “The level of arrogance that the Supreme Court has exhibited in recent years is surprisingly high.”
Biden announced last week he endorsed an 18-year term limit for the justices. He said he also supported a code of conduct that would require justices to disclose gifts, refrain from public political activity and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest.
Lake County Democratic Party Chairman Jim Wieser said the Supreme Court should follow a code of conduct like all the other courts throughout the country. Extensive reporting by ProPublica revealed that Justices Clarence Thomas and Samuel Alito failed to disclose millions in gifts from conservative donors with cases before the court, which prompted the court to adopt a code of conduct for the first time in November.
The gifts along with recent reports around Supreme Court Justice Samuel Alito flying an upside-down American flag outside his home in the days after the Jan. 6, 2021 insurrection showed that the credibility of the court has to be restored, Wieser said.
“Something has to be done to modernize the Supreme Court,” Wieser said.
Wieser said he’d be open to adding two additional seats to the Supreme Court so there would be 11 justices like on the Circuit Court of Appeals. Biden’s proposed term limit for justices is a good starting point to discuss what the term limit should be, he said.
“Let’s debate it, and see what comes of it,” Wieser said.
Justice Elena Kagan, who President Barack Obama appointed, suggested establishing a committee of highly respected judges appointed by the chief justice at a judicial conference in California last month, Bloomberg reported.
During a Fox News interview aired Sunday, Justice Neil Gorsuch, who was appointed by President Donald Trump, at first declined to express an opinion on the proposal before extolling the strengths of an independent judiciary and ended with: “And so, I just say, be careful.”
Porter County Republican Chairman Michael Simpson said the proposed changes to the Supreme Court are Biden’s way of responding to recent Supreme Court decisions that didn’t go his way.
“I don’t see any reason to change the Supreme Court. It’s a co-equal branch of government,” Simpson said.
Members of Congress won’t vote for any bills that pertain to the proposal, Simpson said.
“It’s going nowhere,” Simpson said.
Lake County Republican Chairman Randy Niemeyer, who is running for U.S. Representative in Indiana’s First District, said the proposal “is nothing but a political ploy to distract voters from the disastrous economy.”
“Politicizing the courts won’t help fill the refrigerators or gas tanks of the hard-working families in Northwest Indiana,” Niemeyer said.
The history of the judicial code of conduct dates back to the 1920s, Geyh said. After the Chicago White Sox threw the 1919 World Series, the corruption led Major League Baseball to create the commissioner of baseball position, he said.
The first commissioner was Judge Kenesaw Mountain Landis, who also played minor league baseball, Geyh said. Landis took a $43,000 salary as commissioner without resigning his position as judge, he said.
“All hell broke loose because it was perceived as just a gross impropriety for him to moonlight as a federal judge while being commissioner of baseball,” Geyh said. “They tried to impeach him, but they concluded, kinda, that it wasn’t likely to be an impeachable crime.”
But, in response, Chief Justice William Taft chaired a newly created commission, which was established to create a body of rules to guide judicial ethics, Geyh said. The commission issued the Canons of Judicial Ethics in 1924.
“They were completely toothless,” Geyh said. “They told judges, ‘Gee whizz, wouldn’t it be a nice idea if you’ and then they had 30 some odd proposals, but there was no enforcement to them.”
By 1972, the American Bar Association revised the code of conduct to include enforcement by disciplinary agencies, Geyh said. In 1973, the federal judiciary adopted its own code of conduct based on the American Bar Association’s code, he said, but the enforcement of the code was a little looser, he said.
The U.S. Supreme Court, after a decade of pressure, adopted a code in November that is similar to the American Bar Association code of conduct. But, there is no enforcement of the code formally, Geyh said.
“It’s relevant that the lower federal courts, although they do have a disciplinary process, they don’t use it explicitly to enforce the code either. But, they at least have a disciplinary process and the Supreme Court doesn’t,” Geyh said.
In the past, there has been a tension between Congress and the Supreme Court, Geyh said, but the two entities typically have a conversation or dialogue around whatever issue arose between them. But in recent years, Geyh said the Supreme Court has been more antagonistic toward Congress.
The code of conduct portion of Biden’s proposal will likely see an uphill battle, Geyh said, because the subject has become polarized along party lines.
“When the court is really dragging its feet, it leads me to conclude that these proposals are not going to be easy to adopt,” Geyh said.
The term limit proposal is interesting, Geyh said, because one of his colleagues in the political science department did some polling and found that 75% of the public supports term limits for Supreme Court justices.
Under federal statute and its own code of conduct, Geyh said the Supreme Court justices are supposed to recuse themselves from cases where ethical lines are blurred. But, the court hasn’t abided by that rule, he said.
“The Biden folk are right in saying that the court has been discouragingly lax in their approach to disqualification rules. They like to proceed on the assumption that they are as impartial as the day is long and resent anyone challenging that,” Geyh said.
Overall, the proposal will take a long time to implement, Geyh said, because the issue has become partisan with Republicans viewing the move as an attack on conservative judges. But, Geyh said historically liberal judges have faced ethical questions as well.
“The Supreme Court is just so jumpy about any intrusions upon their independence that they are going to push back against any encroachments on their independence,” Geyh said.
To move the proposal forward, it is important to have conversations about how a code of conduct, with disciplinary mechanisms in place, would benefit everyone not just one side of the political aisle, Geyh said.
“When it comes to reforming an institution as significant as the Supreme Court it will take time. These are serious proposals. I don’t endorse all of them in their current form, but they are conversation-worthy,” Geyh said.