JP Observer: Fixing our Democracy – First ethics code ever proposed for SCOTUS

Most of the recent extreme Supreme Court (SCOTUS) rulings have made no sense. We live in a representative democracy where the majority is supposed to pretty much prevail.

Yet SCOTUS rulings to loosen gun controls and CO2 emissions regulations, allow abortion bans by states, permit prayer at school events and give tax money to religious schools don’t reflect thought in the real world. Public opinion polls, the platform of the largest political party, and important previous SCOTUS rulings often don’t agree with them.

Massachusetts laws are certainly not in line with recent rulings on guns and reproduction rights, for example.

With Congressional hearings on TV revealing the attempt to overthrow our democracy with violence and fraud that culminated in a Jan. 6, 2021 insurrection, it’s no wonder the country is in upheaval right now. Jamaica Plain is one of many places abuzz with concern about our democracy itself. 

We should have seen this coming. Our Constitution, including the Bill of Rights, is 231 years old. It was changed to mark the end of slavery and give women the vote and in 25 other ways. But too little has been done to evaluate, supplement, improve and modernize our federal government set-up and processes since the 18th century. And some weird behaviors have been institutionalized.

There are serious gaps and tears in the fabric of this democracy from which power grabs can and easily do emerge, despite elections which should prevent that. No matter which way sincere people turn, there seems to be a systemic barrier to majority views.

Content issues regarding weapons, the environment, women’s health, separation of church and state—and all issues, really—are in danger of continuing to be decided contrary to common sense, modern life, and popular will if actions aren’t taken. It’s scary.

Until some basic changes are made in how the government operates, our democracy is in danger. Our government is broken in key places, and it needs to be repaired if it is to remain. The planet itself may not survive if the logical balance of powers, as sought by the founders as a goal, falls apart.

All three branches of government were dominated by the smaller [Republican] party from 2017 to 2021. The current ultra-conservative Supreme Court majority was put in place by right-wing Republican President Donald Trump, who got to appoint three very conservative justices, despite his losing the popular vote for the presidency by more than 3 million votes. 

The Senate is pretty evenly split between the parties now, but the strange filibuster rule says 60 members of the Senate must approve to stop debate on a bill before there can be a vote on it—so the slight majority of Democrats cannot pass Senate legislation on its own.

Weak democracies cannot survive where minority, unregulated, uneven and weirdly regulated government operations are allowed to control decision-making as they do today.

One flagrant gap in our nation’s fabric is the lack of a code of ethics for SCOTUS justices.

The good news is that, recently, government has been taking some actions to shore up the trustworthiness of federal courts.

US Senator from Massachusetts Elizabeth Warren and colleagues concerned about democratic fundamentals, including Sen Edward Markey of Massachusetts, took important steps toward repairs in May by proposing ethics laws to govern the federal judiciary.

“I’ve been fighting to reform our judicial ethics system for years,” Warren said in a statement. “At a time when public trust in the Supreme Court has collapsed to historic lows, it’s critical that we enact legislation to reform this broken system.”

Sen. Markey said, “For federal courts to be respected as arbiters of fairness and justice, they must firmly hold themselves to fundamental standards.

A lot happened in Washington in May related to federal courts and ethics. A related bill addressing only transparency was passed and signed, but much more waits to be done.

On May 10, Warren and Senator Primala Jayapal introduced the Judicial Ethics and Anti-Corruption Act “to overhaul our nation’s judicial ethics laws and restore public faith in our court system,” according to a statement from Warren’s office that day. Six senators and 13 representatives were co-sponsors.

Ethics throughout the federal courts would be strengthened by the bill. Most important, it would require that Supreme Court justices adhere to a binding Code of Conduct.

Clarence Thomas in January was the single justice to support Trump’s request to block documents from being released to the House committee investigating the Jan. 6 attack on the Capitol. Later, it came out that Thomas’s wife, Virginia Thomas, played an active role with Trump Chief of Staff Mark Meadows and others in planning for Jan. 6 and other actions to try to overturn the presidential election results to favor Trump. Thomas did not recuse himself from voting.

The proposed code would require Supreme Court justices to issue written recusal decisions whenever a litigant requests recusal and for the Judicial Conference to issue advisory opinions. (The Judicial Conference is the national policy-making body for the federal courts.) The ethics bill also would require lower court judges to follow the same process and cease making their own recusal decisions.

Other parts of the Warren bill dealt by restricting: justices from directly owning stocks; receiving gifts on sealing public health and safety records. The Code would require: expansion of disclosure of activities to the public and new mechanisms for accountability.

The very next day, May 11, The House Judiciary Committee passed the Supreme Court Ethics, Recusal and Transparency Act (SCERTA), by a 22-16 vote along party lines. SCERTA would “expand and modernize the federal recusal law to ensure justices’ and judges’ participation in proceedings is fully ethical and would require the Supreme Court to write and adopt a code of conduct,” according to Fix The Court (FTC), an advocacy group that has worked for ethics rules regarding recusal, travel, transparency, accountability, and gift standards for SCOTUS for years.

SCERTA, too, would fix the decades-long situation whereby only lower court judges have a formal ethics code, according to FTC.

SCERTA calls for SCOTUS to write and adopt an ethics code similar to Warren’s, with the notable difference that justices would be allowed to own and manage stocks and a few added restrictions regarding lobbying and amicus briefs.

A Senate companion bill was introduced to the Senate Judiciary Committee the same day.

Jump ahead to the next day, May 13, with great minds continuing to think about the need for judiciary ethics rules. President Joe Biden signed the bipartisan Courthouse Ethics and Transparency Act into law. It requires that all judicial financial disclosures by justices be full-text searchable, sortable and downloadable format for access by the public.”

“This is a major achievement for all,” FTC senior researcher Tyler Cooper said on its website, “and FTC hopes this bipartisan cooperation will now carry forward through other pending legislation to provide accountability to the third branch.”

For information on federal judicial ethics and how to get involved, see fixthecourt.com and/or warren.senate.gov. 

Other fundamentals of democracy that urgently need attention include, but are not limited to: establishing ethics rules elsewhere in government, including a code of ethics for the president of the U.S.; instituting one-person-one-vote for president through the National Popular Vote agreement among states; overcoming the SCOTUS ruling in 2010 (Citizens United) that allows corporations and other groups to spend unlimited money on election campaigns; review and modify presidential election process and rules and make them more uniform; improve voting rights; consider term limits for all key elected officials and appointed court personnel; expand SCOTUS; review and improve Congressional management rules, including abolishing the filibuster.

Overall, we have another basic problem: lack of enforcement of some important laws. Laws and rules, especially regarding government behavior, should say who is responsible for enforcement of them. Current laws that deal with public safety, like gun sale laws, certainly need to be supported by enforcement.

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