Scotus house: can a supreme court ethics lawyer and inspector general help get this fraternity under control?

• Pages: 347-413
• Date: 01 July 2024
• Published date: 01 July 2024
• Author: Richard W. Painter
• Subject Matter: Derecho Civil

ARTICLES

SCOTUS House: Can a Supreme Court Ethics

Lawyer and Inspector General Help Get this

Fraternity under Control?

RICHARD W. PAINTER*

ABSTRACT

Today, the United States Supreme Court is immersed in an ethics crisis of un-

precedented proportions. Public conf‌idence in the Court is at an all-time low

and Congress is considering action. The Court is less likely to police itself than

it was over f‌ifty years ago when Justice Abraham Fortas resigned over a scan-

dal that was probably less serious than that facing at least one justice today.

This article discusses the Court’s recent scandals and explains multiple factors

that make the Court prone to ethics lapses, perhaps more so than the other two

branches of government. This Article then proposes that a partial solution to

the Supreme Court ethics crisis would be to have a dedicated ethics lawyer and

an inspector general for the Supreme Court. There are specif‌ic ways in which

an ethics lawyer and an inspector general should help reverse the factors iden-

tif‌ied in this Article as obstructing a workable ethics regime at the Court.

Congress has the power and responsibility to enact these and other reforms

necessary to assure that the Court’s justices in their personal conduct uphold

their duty to be faithful to the law while holding an off‌ice that gives them the

power to interpret and enforce the law.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349

* S. Walter Richey Professor of Corporate Law, University of Minnesota Law School, Former Associate

Counsel to the President and chief White House ethics lawyer, 2005–07. As the White House ethics lawyer in

2005 and 2006, this author assisted in vetting and preparing John Roberts and Samuel Alito for Senate conf‌ir-

mation to their seats on the Supreme Court. The author is grateful to Amanda Frost and Virginia Canter for

very helpful comments on this article and to Norman Eisen and Noah Bookbinder for invaluable discussion of

the underlying Supreme Court ethics issues addressed in this Article. All errors are mine. © 2024, Richard W.

Painter.

347

I. THE PROBLEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352

A. THE RULES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353

B. JUSTICE FORTAS’S RESIGNATION. . . . . . . . . . . . . . . . . . . 354

C. CONGRESS’S LIMITED JUDICIAL ETHICS REFORMS . . . . . 356

1. SENATOR GRASSLEY’S PROPOSAL FOR AN INSPECTOR GENERAL 357

2. LUXURY TRAVEL AND OTHER GIFTS TO JUSTICES . . . . . . . . . . . 357

3. INCOMPLETE DISCLOSURES BY JUSTICE GORSUCH AND CHIEF

JUSTICE ROBERTS........... ......................... 362

4. SUPREME COURT JUSTICES’ BOOK DEALS ............. .... 363

5. FAILURE TO RECUSE .................................. 366

6. STOCK HOLDINGS .................................... 369

7. THE “ARMADA OF AMICI”............................. 372

8. DO THE JUSTICES RECOGNIZE THEY HAVE AN ETHICS

PROBLEM?......................................... 374

II. WHAT’S WRONG WITH ETHICS AT THE SUPREME COURT?. . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . .

376

III. AN ETHICS LAWYER AND AN INSPECTOR GENERAL FOR

THE SUPREME COURT 389

A. THE SUPREME COURT ETHICS, RECUSAL AND

TRANSPARENCY (SCERT) ACT 389

B. AN ETHICS LAWYER FOR THE SUPREME COURT . . . . . . . 391

C. PRE-CONFIRMATION ETHICS AGREEMENTS FOR NEW

JUSTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 394

D. AN INSPECTOR GENERAL FOR THE SUPREME COURT . . . 397

IV. WILL A SUPREME COURT ETHICS LAWYER AND IG HELP FIX

ETHICS ON THE SUPREME COURT?

. . . . . . . . . . . . . . . . . . . . . . 401

V. SEPARATION OF POWERS AND OTHER OBJECTIONS TO A

SUPREME COURT ETHICS LAWYER AND IG . . . . . . . . . . . . . . . 407

A. WHY CAN’T THE LAW CLERKS DO IT? . . . . . . . . . . . . . . . 407

B. WHY CAN’T THE JUSTICES DO IT THEMSELVES? . . . . . . . 407

C. WILL CONFIDENTIALITY BE LOST? . . . . . . . . . . . . . . . . . 408

348 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 37:347

D. WILL THE IG GET THE LAW RIGHT? . . . . . . . . . . . . . . . . . 409

E. THE SEPARATION OF POWERS ARGUMENT . . . . . . . . . . . 410

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412

INTRODUCTION

The power of the Supreme Court has increased dramatically in recent years.

The Court has struck down key provisions of campaign f‌inance laws,

1

struck

down state gun laws,

2

reversed Roe v. Wade,

3

prohibited aff‌irmative action in col-

lege admissions,

4

required a president to submit to a grand jury subpoena,

5

and

struck down President Biden’s executive order forgiving a portion of student

loans.

6

In July 2024, the Court fundamentally changed the balance of powers in

the federal government by ruling that the president is immune from prosecution

for crimes committed while acting within his core constitutional duties.

7

The

Court expands the power of the states when the majority of the Justices agree

with state laws (abortion)

8

and restricts the power of the states when a majority of

the Justices disagree (gun control

9

and aff‌irmative action

10

). This Court is extraor-

dinarily powerful, and its decisions impact our daily lives.

Mark Lemley—in the Harvard Law Review—made the credible accusation

that the only consistent logic of the Court’s opinions is the justices’ intent to con-

solidate their power by weakening Congress, the presidency, and the states when-

ever they like.

11

There is no sign of the Court’s power receding, and broader

structural reforms of the Court have f‌loundered. There is little support in

Congress or the White House to expand the size of the Court or implement other

major changes.

12

This Article does not address the substance of the Court’s decisions. This

Article also does not address the Court’s “shadow docket” in which the justices

decide important constitutional and statutory questions in cases that have not

reached f‌inal judgment—for example, stays and other injunctions—without full

1. Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010).

2. New York State Rif‌le & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).

3. Dobbs v. Jackson Women’s Health Ctr., 597 U.S. 215 (2022).

4. Students for Fair Admissions v. President and Fellows of Harvard College, 600 U.S. 181 (2023).

5. Trump v. Vance, 140 S. Ct. 2412 (2020).

6. Biden v. Nebraska, 600 U.S. 477 (2023).

7. Trump v. United States, 603 U.S. ___ (2024).

8. See Dobbs, 597 U.S. at 231.

9. See New York State Rif‌le & Pistol Ass’n v. Bruen, 597 U.S. 1, 11 (2022).

10. See Students for Fair Admissions v. President and Fellows of Harvard College, 600 U.S. 181 (2023).

11. Mark A. Lemley, The Imperial Supreme Court, 136 HARV. L. REV. 97 (2022).

12. See generally PRESIDENTIAL COMMISSION ON THE SUPREME COURT OF THE UNITED STATES, FINAL

REPORT (2021) (avoiding endorsement of major changes to the Court, including its expansion, but proposing an

“advisory code of conduct” for the Court).

2024] SCOTUS HOUSE 349