New Whitehouse Report Finds Supreme Court Alone Among U.S. High Courts with No Enforcement Mechanism for Ethics Violations

All fifty states have figured out a mechanism for enforcing ethics rules and judicial codes of conduct at their highest court

Most resemble Whitehouse's Supreme Court Ethics, Recusal, and Transparency Act requiring the Supreme Court to adopt a binding and enforceable code of ethical conduct

Nemo judex in sua causa

Washington, DC - U.S. Senator Sheldon Whitehouse (D-RI), Chair of the Senate Judiciary Subcommittee on Federal Courts, today released a report examining the procedures for investigating and enforcing violations of judicial misconduct and ethics rules in all fifty states and the District of Columbia. The Senator's report found that every state supreme court (or equivalent high court) subjects its judges or justices to ethics reviews-similar to the processes that apply to all federal judges except the Supreme Court under the Judicial Conduct and Disability Act. Whitehouse's Supreme Court Ethics, Recusal, and Transparency Act would remedy that.

"Supreme Court justices have gotten caught receiving enormous gifts from politically-interested billionaires and refusing to report the gifts as required by law. They have also repeatedly participated in cases despite glaring conflicts of interest. Yet the Supreme Court refuses to allow basic fact-finding regarding the justices' behavior, or any neutral process to resolve ethics questions," said Whitehouse. "There is an old adage that the best way to show that one stick is crooked is to set a straight stick down next to it. This report shows a straight judicial-ethics stick in all fifty states and the District of Columbia, and provides dozens of templates the Supreme Court could consider for receiving, investigating, and resolving ethics complaints. The Court's insistence that this is hard, or can't be done, is belied by every state."

Whitehouse informed Supreme Court Chief Justice John Roberts and the Judicial Conference of the report in a letter sent last week.

"The enclosed report shows that states across the country have solved the issue of how a High Court can adopt binding ethics rules providing for the basic elements of process of law: a place to file complaints, a proper fact-finding process for credible ones, and a neutral determination of compliance vel non with the ethics code. Nemo judex in sua causa is both an ancient and worthy principle," wrote Whitehouse in last week's letter.

Whitehouse's Supreme Court Ethics, Recusal, and Transparency Act would require Supreme Court justices to adopt an enforceable code of conduct, create a mechanism to investigate alleged violations, improve disclosure and transparency when a justice has a connection to a party or amicus before the Court, end the practice of justices ruling without fact-finding on their own conflicts of interests, and require justices to explain their recusal decisions to the public.

Whitehouse's report finds that most states' process is very similar to what his Supreme Court Ethics, Recusal, and Transparency Act would require. Such procedures include:

• Allowing anyone to file complaints alleging misconduct by state supreme court justices, subject to initial screenings by investigators;
• Empowering a special commission, usually including sitting or former judges, to investigate and find facts regarding complaints of ethical misconduct by justices, and;
• Permitting ethics commissions to impose or recommend disciplinary actions, including against members of the highest court who have committed misconduct.

The full report is available here.