A view of the U.S. Supreme Court on September 21, 2021 in Washington, DC Credit – Drew Angerer—Getty Images
President Joe Biden signed a law Friday that will increase financial disclosure requirements for federal judges and Supreme Court justices, a move legal experts describe as a small but meaningful step towards reform at a time when public trust in the federal judiciary is at an all time low.
The new law, the Courthouse Ethics and Transparency Act, mandates the creation of an online database where the public can search federal judges’ and Supreme Court justices’ financial disclosures. It also mandates that judges and justices follow the same financial disclosure rules as Congress, which require that transaction reports are filed for any securities trades worth more than $1,000 within 45 days of the deal. The law says the database must be online within 180 days of enactment and that all future disclosures must be uploaded within 90 days of the May 15 filing deadline.
“The Courthouse Ethics and Transparency Act is a small step, but an important one, in the long-belated effort to reduce financial conflicts of interest that compromise the integrity of federal judges, including Supreme Court Justices,” Harvard Law professor Laurence H. Tribe tells TIME. “But the most dangerous conflicts are those arising from partisan politics, and this law would do nothing at all to curb those.”
The bipartisan change is part of a broad, years-long push to reform the federal judiciary. Efforts on the left were fueled in recent weeks after an unprecedented leak of a draft opinion showed the Supreme Court poised to overturn the constitutional right to abortion access enshrined in Roe v. Wade. (The court’s final opinion is expected in June.) The legislation also comes amid increasing calls from Democrats for Supreme Court Justice Clarence Thomas to recuse himself from all cases dealing with the January 6th insurrection, after texts reported by the Washington Post revealed his wife, conservative activist Ginni Thomas, urged then-White House chief of staff Mark Meadows to overturn the results of the 2020 election.
Supreme Court justices are the only judicial officers in the country not governed by an ethics code, and Democrats have introduced bills in both the House and the Senate that would not only impose a formal code of conduct, but also raise standards for when judges and justices must recuse themselves because of a perceived conflict of interest.
“There’s been more action on judicial ethics in the last few months than there’s been in the last 40 years,” says Gabe Roth, the executive director of the court reform advocacy group Fix the Court, which helped advise on the crafting the new law.
What ethics rules are Supreme Court justices under?
Judges and justices already have to file financial disclosure reports each year. The problem is that the judiciary is often several years behind in releasing the disclosure reports of the 2,400-plus lower court judges, and doesn’t release them online, says Roth. The new law increases the types of financial disclosures judges and justices must make and increases the accessibility of that information.
The legislation was introduced after the Wall Street Journal reported in September that more than 130 federal judges had violated U.S. law and judicial ethics by overseeing court cases involving companies in which either they or members of their family owned stock, and found that federal judges had improperly failed to disqualify themselves from 685 court cases since 2010. In his year-end report in December, Chief Justice John Roberts said the violations found by the Journal were mostly “isolated” and “unintentional,” but said that collectively the federal judiciary’s “ethics training programs need to be more rigorous.” The bill passed through Congress with a rare showing of bipartisanship this winter, passing the House and Senate by a voice vote.
“Litigants cannot find the information that they need to avoid these conflicts,” says U.S. Rep. Deborah Ross, a Democrat from North Carolina, who sponsored the bill in the House. “And judges, because of the way they report and the lack of periodic reporting, don’t hold themselves accountable to avoiding conflicts.” Now, if a lawyer heads to court, Ross tells TIME, they can look up a judge’s financial disclosures in an online database to determine for themselves if they have a conflict.
Kermit Roosevelt, a professor of law at University of Pennsylvania, says the new law can be seen “as a test case to see if Congress can in fact, regulate [jurists’] behavior after they become Supreme Court justices.” It’s usually up to the individual justices to recuse themselves, he explains. The online database, and the increase in disclosure requirements, could make it easier for the public to see whether justices are complying with the new law. “It’s a very unclear situation, and this might bring some clarity to it,” he says.
Stephen Gillers, a professor at NYU School of Law, says that in Justice Roberts’ year-end report back in 2011, he questioned whether Congress has the power to impose such requirements on Supreme Court justices at all, but added that they must comply with them anyway. “It will be interesting to see if any of the justices balk at the new requirements and what happens if they do,” Gillers says.
The long, slow road of judicial reform
After calls for broader reforms of the Supreme Court dominated the Democratic presidential primary, President Joe Biden issued an executive order in April 2021 establishing a commission of legal experts to provide analysis of the “principal arguments” for and against—“including an appraisal of the merits and legality”—of various proposed reforms, such as changing the size and composition of the court or imposing term limits on justices. Some progressive advocates felt the reform commission would give an opinion on such proposals. But in the end, the commissioners did not take a position on either controversial issue. Democrats have introduced bills in the House and the Senate that would impose term limits on justices, but they have not advanced.
Caroline Fredrickson, a senior fellow at the Brennan Center for Justice who served as the president of the progressive American Constitution Society from 2009 to 2019, calls the Courthouse Ethics and Transparency Act is a “start.” Tribe, Roosevelt, and Fredrickson all served on Biden’s reform commission.
“There is obviously much more to be done to ensure meaningful judicial reform — and Congress continues to pursue that objective,” Fredrickson says. “But it is good to see some progress now as we try to ensure further improvements in transparency, ethics, and fair treatment for staff.”