Why the Civil Rights Community Continues Pushing for Judicial Ethics Reform

Courts Resources 08.11,23

Media reports, including this week’s troubling ProPublica story about Justice Clarence Thomas, have detailed deeply concerning patterns of Supreme Court justices refusing to hold themselves to basic ethical standards — raising questions about the very integrity of our nation’s most powerful court. These escalating patterns of misconduct are unethical, unacceptable, and damaging to the rule of law. They have also powerfully demonstrated that we need serious and immediate congressional action on judicial ethics.

Lena Zwarensteyn, the senior director of our fair courts program, recently spoke to WPFW about this crisis and why the civil rights community in particular is pushing for ethics reform. The interview, which originally ran on August 7, is transcribed below and has been edited for length and clarity.

Sue Goodwin (WPFW): Just over two weeks ago, the U.S. Senate Judiciary Committee voted along party lines to advance legislation that aims to establish a code of conduct for the Supreme Court. The legislation faces steep odds of gaining the kind of Republican support it needs to actually become law. However, it does indicate a growing concern about transparency and impartiality among the justices. And among those expressing concern is The Leadership Conference on Civil and Human Rights. To explain what those concerns are and how they should be addressed, we are joined by Lena Zwarensteyn. She is senior director of the fair courts program at The Leadership Conference on Civil and Human Rights. And we started our conversation by acknowledging that such a set of standards already exists. It’s called the Code of Conduct for United States Judges and was first adopted by the Judicial Conference in 1973.

Lena Zwarensteyn: The code of conduct was really created to make sure that we know that the judges who decide important cases, whether that is about our civil rights, who can vote, who’s paid fairly, or anyone who’s involved in the criminal-legal system — that those judges’ decisions and how they run their courtroom are determined by the facts and the law and what’s presented in front of them and not by outside influence. And we want to be making sure that those judges do hold themselves to a high standard of what is considered to be fair and ethical. 

Goodwin: Sounds like the right thing to do, right? Which makes it that much more confounding to take in that there is no similar code of conduct that applies to the Supreme Court justices. That bears repeating: Of all the country’s state and federal courts, only the Supreme Court lacks a code of conduct. So what are the implications of that?

Zwarensteyn: There is nothing that requires Supreme Court justices, for example, to avoid any impropriety or appearance of impropriety. Rather, they just ask us to trust them that they will. But unfortunately, we have seen time and time again through this escalating ethics crisis that continues to be reported, after a number of important and I think really critical news stories have broken, about how Supreme Court justices have really abused their power and perhaps engaged in misconduct that they should not have. So it is really unfortunate right now that our district courts, our circuit court judges, our other federal judges are held to a basic standard of ethical behavior, yet our Supreme Court justices are held to none.

Goodwin: As trust in the Supreme Court runs thin, interest in taking action to apply a code of conduct to the Supreme Court increases. In April, The Leadership Conference and more than 50 national organizations wrote to members of Congress calling for swift action to address the ongoing ethics crisis. The letter states, “In light of this judicial ethics crisis, we renew our calls for Congress to work swiftly to hold our judges and justices to the highest possible ethical standards. Congress should immediately pass ethics legislation that includes, at a minimum, a Code of Conduct for Supreme Court justices and a mechanism to enforce adherence to ethics and recusal rules, in addition to further necessary transparency measures.” Lena Zwarensteyn explains what led up to writing the letter.

Zwarensteyn: I do think this is part of the escalating crisis that we’ve seen at the Court. For a number of years we have been concerned about this, but last November when we heard reports about people who have significant wealth — and a specific agenda as well — trying to infiltrate the Supreme Court and influence some of the most conservative justices to bolster them and embolden them to make even more devastating decisions, specifically on the fundamental right to abortion. Seeing that news story then coupled with the really appalling reports about Justice Clarence Thomas and the billionaires who help fund his vacations and travel, who also do have business in front of the court, whether that is that they have paid for him to travel with them on super yachts or jets or to pay for their mother’s house. Those are really appalling concerns.

But it doesn’t stop there. It is so critical that the civil rights community did all join together to really talk about how important this is because for us, it is so important that we not only believe, but know, that our justices are bound by a higher ethical standard — so that they would not let outside influence, whether that is through friends or financial interests or family members, really influence how they might be approaching their job. So it was critical that with these escalating reports that we implore Congress — because the Supreme Court justices themselves weren’t doing anything about this crisis.

Goodwin: As to what actually goes into a code of conduct? Lena Zwarensteyn says the code of conduct that applies to our lower court judges right now offers some valuable guidance on that.

Zwarensteyn: There are a number of canons that are specifically mentioned there that I think are really important because, as we’ve mentioned before, it is critical that our judges and justices don’t have any appearance of impropriety, and obviously actual impropriety as well. That does mean that there needs to be provisions so that there are ways in which any outside influences, both professionally and personally, through family, social interactions, politics, financial, or any other type of relationship, is not known to or even appear to have any influence over the conduct of that judge or justice. It’s also important that judges and justices don’t belong to organizations that discriminate on the basis of religion, race, or gender, or anything else. Another canon that applies to the lower court judges is that they can’t have any financial interest in any case or exploit their position to extract any financial benefit from their position.

Goodwin: Lena Zwarensteyn adds that it is critical that any code of conduct have enforceable guidelines whereby justices recuse themselves from any case in which their impartiality might reasonably be questioned.

Zwarensteyn: This is why strengthened transparency measures are also critical, so that the judges themselves are doing more to even disclose perhaps some of their financial interests. So anyone who comes before the Court can do research and not have any of that hidden in a way where it’s unknown to the public, or to the parties that would come before the justice, that they may have an interest so that they can seek recusal or otherwise find mechanisms to find some sort of redress there.

Goodwin: We ended our conversation with Lena Zwarensteyn by returning to the theme of why establishing a code of conduct for the Supreme Court is so essential right now and why strengthening ethics on the Supreme Court has been such a priority for The Leadership Conference on Civil and Human Rights.

Zwarensteyn: We have for decades known that the courts are absolutely critical to advancing a thriving multiracial democracy, that they are critical for rule of law, that they have been a vehicle to both advance — and unfortunately, we have seen also reverse — the progress that the civil rights movement has made. It is absolutely critical that this institution be fair, independent, and we need to be assured that there is not undue influence that is creating any sort of condition by which these judges and justices are going to be making their decisions, because there may be more folks who have wealth and power who have access to them. We have worked so hard to create the environment by which our judiciary is closer to that day, where it provides equal justice under law for everybody, but we are still so far from that. So in addition to making sure that we have judges and justices who will protect and advance our civil rights, who come from all of our communities so we can see ourselves reflected in the judiciary — because we know that that is going to improve judicial decision-making, that it’s going to give more confidence in our courts — we also need to be making sure that the rules by which those judges and justices operate are such that we can actually have faith that those decisions are informed by the law and facts, and not wealth and power.

Goodwin: That was Lena Zwarensteyn. She is senior director of the fair courts program at The Leadership Conference on Civil and Human Rights. To find out more about their work on this issue, visit civilrights.org/courts.

Listen to the full interview here.