Does the Supreme Court need a code of conduct?

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Ethics and the U.S. Supreme Court.

"The Supreme Court should step up and fix this themselves, for years they refused. And because the court will not act, Congress must," Democratic Sen. Dick Durbin of Illinois says.

The U.S. Constitution mandates a separation of powers. So, does Congress have the authority to requires the Supreme Court to improve its ethics oversight?

Some say yes.

"For over 230 years Congress has regulated vital aspects of its operations including its ethical obligations," law professor Amanda Frost says.

Others, say no.

"I believe the basic principles of separation of powers means that the court, as a separate branch of government, is solely responsible for its financial discourse and ethics rules," Michael B. Mukasey, former federal judge and U.S. attorney general under President George W. Bush, says.

Today, On Point: Nine supreme court justices make decisions about what falls in and out of the bounds of law. But they don't have a code that describes where their own ethical boundaries should be. Why?

Amanda Frost, professor of law at the University of Virginia School of Law. She testified in front of the Senate Judiciary Committee this week on ethics and the Supreme Court. Author of Judicial Ethics and Supreme Court Exceptionalism, a 2013 essay written in the Georgetown Journal of Legal Ethics.

MEGHNA CHAKRABARTI: In the United States, employees in the executive branch, the legislative branch, practicing lawyers, judges at the state and federal level, are all subject to ethical codes of conduct. There's one glaring exception to that. The nine justices on the United States Supreme Court.

SEN. DICK DURBIN: This is untenable. Ethics cannot simply be left to the discretion of the nation's highest court. The court should have a code of conduct with clear and enforceable rules so both justices and the American people know when conduct crosses the line. Highest court in the land should not have the lowest ethical standards.

CHAKRABARTI: On Tuesday, Illinois Democratic Senator Dick Durbin chaired a Senate Judiciary Committee hearing examining the lack of any sort of formal ethics code for the Supreme Court, as has become inevitable on the Hill. Politics were rushed into the fray. Here's Republican Senator Lindsey Graham of South Carolina.

SEN. LINDSEY GRAHAM: We can talk about ethics, and that's great. But we're also going to talk about today of a concentrated effort by the left to de-legitimize this court and to cherry pick examples to make a point.

CHAKRABARTI: Now, Senator Graham may have a point cherry picking happens, but in this case, the cherry tree is heavy with fruit. Recently, as reported by ProPublica, Justice Clarence Thomas has accepted luxury trips from Republican mega-donor Harlan Crow virtually every year for more than 20 years. And over those 20 years, Thomas never disclosed those trips.

And according to ProPublica as well, the extent and frequency of the gifts have no known precedent in the modern history of the high Court. Justice Thomas also accepted Crowe's largesse in the form of a home for Thomas's mother and school tuition for a child Thomas helped raise. Another bunch of cherries comes via Justice Thomas's wife, Ginni Thomas, who was paid tens of thousands of dollars by longtime judicial activist Leonard Leo, head of the Federalist Society. The Washington Post reports that Leo deliberately left Thomas's name off of billing and tax paperwork.

Then there's Chief Justice John Roberts, whose wife made millions of dollars recruiting lawyers to prominent law firms, many of which had business directly before the high court. Now, does this raise a conflict of interest with the chief justice?

The Senate Judiciary Committee wouldn't address that directly, but Senator Dick Durbin did call it, quote, more troubling issues that demonstrate the need to begin the process of restoring faith in the Supreme Court, end quote. Moving on, Justice Neil Gorsuch. Shortly after taking the bench, Gorsuch's Colorado home was purchased by the head of a major law firm who had numerous cases before the court. The purchaser of the home was not disclosed in court filings. Now, we're not talking just red cherries here. The cherries come in all shades, including blue.

The late Ruth Bader Ginsburg directly criticized then presidential candidate Donald Trump in 2016, something justices are not allowed to do. She even signed a copy of her decision in an apartment in an important women's rights case and then donated that signed copy to the Women's Legal Defense Fund, who then used it for fundraising. Justice Sonia Sotomayor has been paid millions of dollars in book deals by publisher Penguin Random House, but she failed to recuse herself in at least three cases involving Penguin that have come before the court.

Ditto for Gorsuch, who didn't recuse himself for a case with the publisher after his book deal. So heavy are the branches of that cherry tree. Is it time to do some trimming? Does the United States Congress have the authority to force the Supreme Court to adopt an ethical code of conduct? And if so, what would it look like? How would it be enforced? Here's Michael Mukasey, former federal judge and U.S. attorney general under President George W. Bush testifying in that hearing this week.

MICHAEL MUKASEY: A law compelling the court to adopt such a code or purporting to impose one legislatively would violate the principle of separation of powers and would also be unworkable in as much as there was no authority other than the justices themselves to apply such a code.

Mukasey has a point. Recall the justices get to sit on the bench for life. Why, though, has the country's highest court been unique in this? It has gone 234 years without a binding ethical code of conduct. Well, Amanda Frost will help us answer that question today. She's a professor of law at the University of Virginia. She's a leading expert on judicial ethics, and she testified in that same Senate Judiciary Committee hearing this week. Professor Frost, welcome to On Point.

AMANDA FROST: Thank you for having me.

CHAKRABARTI: So, first of all, I wonder if you could tell us a little bit about what you made of the testimony you heard earlier this week at Judiciary. What was it like being in the room?

FROST: Yes, I was glad that the Senate shone a light on this issue. I was glad that we got to hear from a number of senators and witnesses about this issue. And occasionally there was actually substantive discussion about steps forward and ways to improve the situation and strengthen the court, which is what we all want.

CHAKRABARTI: Did you think that Senator Graham had a point about some cherry picking of egregious examples here?

FROST: So I think one of the problems is that there isn't any oversight of the court's ethics, which leads investigative journalists to act as if they are the ethics officer for the court. And that is problematic. Because what journalists choose to cover or what they manage to discover may appear to some to be biased. And if that's a problem, then the answer is, well, the court itself should be more transparent and should be investigating these issues to avoid this drip, drip, drip of stories from journalists.

CHAKRABARTI: So if you want to control the story, do the investigations yourself, i.e. have an ethical code of conduct. So just to be clear, do you think that the Supreme Court should adopt an ethics code for itself?

FROST: Yes, I think it's high time the court did that.

CHAKRABARTI: Okay. So we're going to talk about why you think that. Some arguments against it. And again, this nagging question, 230 plus years, I mean, how has the Supreme Court, in the absence of a formal code of conduct historically regulated itself ethically over that time?

FROST: Well, first, I will say that the court is regulated by Congress when it comes to its ethical conduct. It doesn't always follow the rules that Congress has laid out for it, but it would not be a brand-new thing to require the court to follow laws governing the ethical obligations of the justices.

So, for example, the justices take an oath. they have since 1789, the creation of the court. Where they promised to administer the law faithfully and impartially. The justices are governed by a recusal statute that's applied to them for 75 years. The justices are required to follow the Ethics and Government Act, which requires that they submit annual financial disclosure forms. And they're limited by other laws that prevent them from accepting gifts from parties before them.

So the justices are required currently, and have been for decades, to follow federal laws regulating their ethical obligations. The problem is they're not always doing it. And then a second problem is I think there also needs to be a code of conduct of the type that governs the lower courts.

CHAKRABARTI: Okay. So we're going to talk more about this, some of the specifics that you just said. Of the extent of what currently exists regarding what should be, in an ideal world, effective tools for ethics regulation here. But given what you just described about the requirement for financial disclosures, for example, I mean, how would you assess what has been reported by ProPublica, for example? And clearly Justice Thomas has received receipt of gifts, of trips, of luxury yacht vacations, of tuition to help send a young man, young boy he was raising, helping to raise. What do you make of all that?

FROST: So Justice Thomas has had recurring problems, not just this year, not just disclosed this year, but over decades with following the obligations of the Ethics and Government Act, which require reporting income and gifts. And he's had to amend those forms many times and acknowledge error in the past. So I see a real problem with Justice Thomas in particular, in that he's been either sloppy or possibly I thought the law doesn't bind him for some constitutional reason.

Either way, I think that's deeply problematic, not just because, of course, we want our justices to behave ethically, but also because he's responsible for administering the law for the entire nation and imposing and applying laws to prisoners and immigrants and the rest of us who have to follow federal tax laws and the various laws Congress enacts. So to have a justice of the Supreme Court be so blatantly ignoring a law that applies to him, I find very troubling.

That said, I'll just add your intro listed a whole number of different news stories in recent weeks that describe ethical problems faced by the justices. And I think some of those are overblown and really are not violations of the ethics rules. But again, the problem is we just have reporters discussing this, not the court addressing it squarely.

CHAKRABARTI: Overblown, such as perhaps the reporting around Chief Justice Roberts and his wife.

FROST: Yes, that in particular. I think they've done nothing wrong. And in fact, I think it's very important that a spouse be able to work. And from what I understand, and I don't know everything, but they they've made every effort to follow the ethics rules.

CHAKRABARTI: This is where ethics ... it's defined by its gray areas. Because I completely take your point about, you know, spouses should be allowed to work. But at the same time, Chief Justice Roberts wife, when he became a justice, I believe she actually stopped directly practicing law herself, in her law firm. Because she had said at the time that it could present some conflict of interest, or just to have the appearance of impropriety. So, does that concern about the appearance of impropriety, should it be a factor in considering what appropriate ethical behavior on the court should be?

FROST: Absolutely. I mean, that is the ethical standards that govern the lower federal court judges, but not the Supreme Court. Talk about the need to avoid the appearance of impropriety and recusal laws which do apply to the Supreme Court justices. Require the justices to recuse, even if they don't think there'd be impropriety if it would create that appearance.

CHAKRABARTI: I mean, yet we have reporting that says, you know, Sonia Sotomayor or Justice Sotomayor did not do that after receiving several book deals from Penguin Random House. I mean, does that disturb you?

FROST: I don't know the details of whether, you know, when those cases came before her and what her contractual or financial relationship was with Penguin Random House. So, I can't comment specifically on her issues there. But I will just say it's part of the problem that we don't know more.

CHAKRABARTI: Let's get right to the question of whether or not Congress has the legal authority to require code of ethics or regulate ethical issues at the Supreme Court, because there's the question of separation of powers. Well, here is Justice Anthony Kennedy back in 2007 testifying in a congressional hearing that, yes, he believes Congress has the power to regulate the court.

JUSTICE KENNEDY: Checks and balances recognizes that the three branches of government are really engaged in a common enterprise, a common purpose. And we have to have substantial interaction with each other. As Senator Specter mentioned, the jurisdiction of the courts, the rules of venue, the size of the courts, the structure of the courts, the structure of the circuits. It's for the legislature to decide. And this is as it should be.

CHAKRABARTI: That was Justice Anthony Kennedy back in 2007. So he says yes. Others say no. We heard a little bit earlier from Michael Mukasey, former attorney general under President George W. Bush. He testified this week in the Senate before the Senate Judiciary Committee. So did Thomas Dupree Jr. Partner and co-chair of the appellate and constitutional law practice group Gibson, Dunn & Crutcher. And he says, no, Congress should not and cannot regulate the court.

THOMAS DUPREE: It is the Supreme Court, not the Congress, that has the prerogative under our constitutional structure to decide whether to adopt a code of conduct that governs themselves. As Chief Justice Roberts has written, courts require ample institutional independence. And the judiciary's power to manage its internal affairs insulates courts from inappropriate political influence and is crucial to preserving public trust in its work as a separate and co-equal branch of government.

CHAKRABARTI: Professor Frost, where do you stand on this issue of separation of powers?

FROST: So I agree with Justice Kennedy that Congress clearly has constitutional authority to regulate the ethical obligations of Supreme Court justices. I'll just say, though, as a threshold matter, and to make this perfectly clear to your listeners, there's no question that the Supreme Court and all federal courts have decisional independence, and that's protected by the Constitution.

And what I mean by that is they cannot be penalized for the outcomes of the cases that they decide. And I stand strongly behind that principle. But that's not what we're talking about here. What we're talking about is whether Congress can administer the courts through legislation, including by regulating the justices ethical obligations and their conduct off the bench. And it's equally clear to me they can do that. In fact, Congress always has done that.

CHAKRABARTI: So then why is this what's prevented Congress from acting so far?

FROST: So as I said, there are some statutes that apply to the Supreme Court. So Congress has acted. The problem there, is the justices are at times ignoring these statutes and suggesting a little bit cryptically, suggesting that maybe Congress lacks that constitutional authority, which I find troubling. So that's one problem.

But the second problem is one you identified at the top of the program, which is that Congress has taken a sort of lighter approach when it comes to the Supreme Court. So the Supreme Court does not have a code of conduct that it follows. There's a federal statute that provides for discipline of lower federal court judges that violate that code or other ethical obligations. And that disciplinary mechanism does not apply to the Supreme Court. That statute excluded the Supreme Court. So Congress has given the Supreme Court wider berth, and I think it's now time to reconsider that.

CHAKRABARTI: I will say, though, that, as you know, Chief Justice John Roberts was invited by Judiciary to testify before the committee. He declined. He sent a letter respectfully declining, but then he appended to that letter a statement on ethics, principles and practices that were signed by the nine justices of the United States Supreme Court. The nine current justices, I should say. And it seems to outline the sort of internal practices and what they call the foundational ethics principles to which they subscribe and carrying out their responsibility. So, I mean, have you taken a look at that statement?

FROST: Oh, yes, I read it closely.

CHAKRABARTI: Does it seem adequate as a description of practices that should cover or should regulate ethical behavior on the court?

FROST: No, it does not. I had a few problems with it. So first, it doesn't actually acknowledge that the justices haven't been following these laws. And so it's odd to read a document that says everything is fine here without acknowledging the very recent and significant problems that have been raised by investigative reporters who've uncovered these problems. I also think the second problem is some of what the justices described as doing. Either they're not doing or fall short of what they're required to do.

CHAKRABARTI: Professor Frost, this is one of those moments where I just have to be completely transparent with listeners here. I'm having a hard time and I don't want people to hear this in the wrong way. I'm having a hard time not laughing out loud. Because in all seriousness, the things that you were saying, you keep coming back to this very important conclusion. About, well, the justices might say they're doing stuff, but they're not really saying what they are doing that has been covered.

I mean, and you've hinted a couple of times that perhaps part of the problem might be that they simply see themselves as above the law or above any reach of ethical regulation. I mean, as a citizen of the United States, I find that, not your thought, but the possibility of that being true on the high court, utterly ridiculous.

FROST: I find it very troubling that there's a suggestion both in this ethics statement and in some other documents that the chief justice has issued over the years, such as his 2011 annual report. In that document, as well as the ethics statement, the justices have suggested that these laws that apply to them, that regulate their ethical obligations might be unconstitutional. That Congress might lack that authority. I think that's extremely troubling. It's wrong as a matter of the Constitution's text and longstanding practice. But also it's really a self-inflicted wound. Because the court is going to only undermine its position in our place in government by claiming that it's above all law and all accountability.

CHAKRABARTI: Can we talk about that a little bit more, because this is something that many of the justices, I would say specifically and most vocally, in fact, Chief Justice John Roberts and Justice Elena Kagan have said they are concerned about. About the public's belief in the legitimacy of the court. I mean, should that not be adequate motivation for them to say, no, we are going to demonstrably prove that we are not above the law, that we are not above the ethical requirements that every single other federal court is bound to. And, you know, we will embrace a formal code.

FROST: I mean, the Supreme Court and every court's power comes not from the power of the purse or the power of the sword, as it's been put in the Federalist Papers. But because of the belief that the public has that they're administering the law impartially and fairly. And so if the court loses the public's trust, it's really lost its place in our society. And I would hope the justices would realize that they could strengthen their own institution by voluntarily adopting rules of conduct for themselves.

CHAKRABARTI: I will add, I'll say here, Professor Frost, that we are in a very delicate time for our democracy. The public's trust in any number of institutions is just ebbing very, very, very rapidly. Right. And I don't think that I couldn't make the argument that Americans still view the justices on the United States Supreme Court as this sort of black robed, high priests of legal wisdom that somehow are smarter, more knowledgeable, more ethical and wiser than the rest of us.

I just don't think that confidence exists anymore because of all the politicization that's happened on any number of issues. That's now sort of bled its way into the public's perception of the court. I mean, do you feel a similar urgency around that issue?

FROST: Well, I do, because I care deeply about courts. All court systems, particularly the federal court system and particularly the U.S. Supreme Court. I do not always agree with the decisions. Sometimes I like them, sometimes I don't. But to me, that's beside the point. I want a functioning and effective judiciary that can help resolve some of our nation's deepest political problems. And then, of course, we turn to the political branches as well.

And so I feel like a court that has been injured by its own failure to protect its integrity and reputation weakens our democracy, because I want a strong court. And if I don't like its decisions, the answer is typically elect a president who picks justices that you like, and that is the political process working effectively within the confines of the Constitution, Right? When we have a system with courts where we feel that the justices themselves are considering themselves to be above the law or issuing just decisions that don't appear neutral or I'm biased, that's a problem.

CHAKRABARTI: Well, that is the core problem, right? Because it's one thing to say, well, we may agree or disagree with decisions based on the strengths or weaknesses of the legal arguments they're in. But it's another thing entirely to say, well, there's doubt being cast on these wildly important decisions coming out of the Supreme Court because people don't have faith that those decisions were made without undue external influence. I mean, that is the key here.

So I want to talk about what's happened in the past, because we've mentioned several times appropriately that Congress actually has taken actions to provide some sort of ethical regulation or framework for federal courts. Now, specifically, you mentioned a binding code of conduct that's been in place since 1973.

So I want to hear a little bit from former federal Judge Jeremy Fogel, who testified recently that throughout his time, both on the state and federal benches, this code of conduct was critical.

JEREMY FOGEL: Your North star is what you look at it in terms of the values you want to uphold as a judge. And it's something that guides your conduct. And it also is something that the public can look to and say, this is what we expect of our judges.

CHAKRABARTI: So, Professor Frost, can you tell us a little bit more about this 1973 code of conduct?

FROST: Sure. This is a code of conduct that applies to lower federal court judges. It contains a number of canons. There are five canons that govern their conduct. And it's things like a judge should refrain from political activity or a judge should perform the duties of the office fairly and impartially and diligently. And these basically provides guidance. A North Star, as Judge Fogel said, for the lower federal court judges. But it doesn't apply to the Supreme Court justices. They say they look to it for guidance. But there's plenty of examples of them not following this code and its commentary.

CHAKRABARTI: What was the decision making behind exempting the nine justices?

FROST: I think the idea was that, one, the justices are vetted very carefully in longer and more detailed confirmation hearings than lower court judges. So the idea is they come to the bench, vetted very carefully and then they're very visible. And so any misconduct in their part would be so quickly apparent to the world that they would not engage in it. But I think recent experience has shown us that we can't rely on that anymore.

CHAKRABARTI: So for every judge below the Supreme Court that's subject to this 1973 code of conduct. What's the enforcement or accountability mechanism in it?

FROST: So the code itself does not have an enforcement mechanism, but there's a second law called the Judicial Conduct and Disability Act that applies only to the lower court judges that allows people to file complaints. Those complaints get investigated by the judiciary itself, and then action can be taken, sometimes referring a judge for impeachment. But there's also many lesser forms of sanction, like public censures. This can all happen to lower federal court judges, but not to Supreme Court justices.

CHAKRABARTI: But to be clear, Supreme Court justices can be impeached, though.

FROST: Absolutely. I will say that any of the ethical misconduct we've been discussing here about Justice Thomas, I do not think that rises to the level of an impeachable offense. I wouldn't support that. But I do think it should subject him to some form of censure as a lower federal court judge who'd violated the ethical rules would be subject to that form of punishment.

CHAKRABARTI: What would that censure look like for a Supreme Court justice?

FROST: So it could be a private statement of censure from a justice such as the chief justice. It could be a public statement from the eight colleagues on the bench saying he has failed to follow the laws. It could require him to say, I realize I have failed to follow the laws and will do better in the future. A public accounting, for example.

There are other forms of censure that lower federal court judges have faced, such as not being allowed to write the opinions in cases for a period of time or having to acknowledge wrongdoing and explain how they will improve in the future. These are all examples of the way lower federal court judges are admonished, and the Supreme Court justices so far haven't faced those consequences.

CHAKRABARTI: So it seems to keep coming up over and over again that somehow the Supreme Court is different. I mean, you heard me rant about it a few minutes ago. This belief that high court is special in some unique way. And we heard a little bit earlier from Thomas Dupree Jr.'s testimony before Judiciary this week.

He also added in that testimony that he believed that having a code of ethics for, say, the Department of Agriculture, which an ethical code does exist for the executive. He said that was not the same thing as enforcing one on the United States Supreme Court. Now, here's how Senator Amy Klobuchar responded to that.

SEN. KLOBUCHAR: You said the court is not just like the Department of Agriculture, and I was looking up. It was set up by Abraham Lincoln in 1862, being a big ag state that we are, 100,000 employees, serves the people of this country. Yet that department, which basically has jurisdiction over what our farmers do for ranching and farming and countercyclical payments. I mean, they've got ethical laws in place.

So actually, you see the opposite. When I think about the power of this court, and I think about what Ms. Frost said, I think there is every reason that this court should have ethical rules like the fine Department of Agriculture, and that we don't look at that as a bad thing. We look at it as a good thing.

CHAKRABARTI: So, Professor Frost, Senator Klobuchar referencing you, what specifically did you say that she was talking about?

FROST: Yeah, well, I loved that exchange by Senator Klobuchar because she was making the point to Mr. Dupree that why shouldn't the Supreme Court have to follow at least the ethical standards that are in place in the Department of Agriculture? Why would we want the highest court in the land to have the lowest of ethical responsibilities?

So I thought she made an excellent point there. And I'll just go back to saying I think it's in the court's own interest for it to have a code of conduct, and it's also Congress's role to protect the courts. And if the justices won't protect themselves, Congress can do it for them.

CHAKRABARTI: Professor Frost, I just wanted to go back in time once again a little bit, because even with no binding code, no binding ethical code on the nine justices of the Supreme Court, there is at least one example of a justice who was punished, to put it that way, for an ethical violation, is there not?

FROST: Yes. So, Justice Abe Fortas back in the '60s had accepted a $20,000 payment from a former client while he was a justice on the Supreme Court. And when that came out, he resigned. He actually returned the money even before the press got hold of it, because he felt uncomfortable about it.

But when that fact came out, he resigned under some pressure. And there's other justices who violated ethics laws over the years. It's been fairly rare. But part of it is we may not know what we don't know. There's so much that occurs in the court that's not transparent, and that's one of the reasons we need more disclosure and more ethical guidelines for the justices.

CHAKRABARTI: Yeah, I guess those would be the unknown unknowns. But I want to be clear on what happened to Justice Fortas. He resigned, as you said, under some pressure. But did that pressure come from his fellow justices or was it public pressure?

FROST: No, it was public pressure. He'd come to the public's attention, both for that payment, plus, he'd had frequent meetings with the president at the time, Johnson. And so there was a general sense that he had not behaved ethically while in office. And he clearly felt the pressure from the scrutiny he was receiving and decided to step down. I think there was a private counseling by some of his colleagues as well, that it would be better for the court if he did so.

CHAKRABARTI: Now, given what politics are today in the United States, could you imagine the justices being responsive to any particular upswell of public pressure in the way that Justice Fortas was?

FROST: Well, I would say I hope so. I fear the lesson of the last 5 to 10 years in our political system has been don't resign and weather the storm. But I would like to think that today the justices could at least closely look at their conduct and realize that they're harming an institution they care about, and improve going forward. I would like to think the public pressure could produce that result.

CHAKRABARTI: We all hold on to some optimism here, Professor Frost. But I want to come back to where we started, actually, because there is a line of criticism that's coming from Republicans on the Judiciary Committee, which is worthy of further examination here. Because, you know, you heard Senator Graham say this is cherry picking and he and others are saying, look, the only reason why the current Senate Judiciary Committee is so enthusiastic about bringing an ethical code of conduct to the United States Supreme Court is because of the current makeup of the court. That, you know, to put it crudely, that 6-3 conservative, liberal makeup of the nine justices, that this isn't really about ethics, but rather about politics. What do you think about that?

FROST: Yeah, well, first of all, I thought it was odd that so many of the Republican senators made the argument at that hearing that while there's many ethical violations by justices on the liberal side of the spectrum as well. That was the substance of what many of them said at that hearing. ... My response is great that we need ethics legislation and ethics guidance for this court, that you're just proving it with your comments.

I take their point that they feel there's cherry picking. And again, my answer to that is if the court was more transparent, if it was following ethics guidelines, if it was taking account of the errors it made and publicly discussing them and apologizing or describing how it would do better, that would, you know, ensure an unbiased account of what's going on at the court.

CHAKRABARTI: You know, I know that my kindergarten teacher actually listens to this program. Her name is Mrs. Carpenter, And Mrs. Carpenter taught me that two wrongs do not make a right. So senators arguing that, like, hey, other justices do it, too, doesn't really seem to be a very persuasive argument to not bind any of the justices to some sort of ethical code. But to put a finer point on this, how long have you been working on this issue?

FROST: Yeah, that's a point I tried to make at the hearing, too. In response to the charge of it's all just about partisan politics. I've been talking about this since 2005. Chairman Durbin mentioned he'd been on top of this issue since, I think, 2011, he said. And obviously there's been a huge turnover in justices since those years. And some decisions that a liberal would like and some decisions a conservative would like in those years. And it's really not about politics for me and at least some other people. It's about having an effective court that the public can trust.

CHAKRABARTI: Well, as I said, the court is sensitive to the public's perception of its own legitimacy of the Supreme Court's legitimacy. And I had mentioned Justice Alito, Elena Kagan, a few minutes ago. Back in 2019, Justice Kagan testified in fact, she testified at a congressional hearing that the Supreme Court at that time was looking into a possible judicial code of conduct.

JUSTICE KAGAN: I do believe that with respect to a code of judicial conduct, Justice Alito has suggested some of the reasons why we have reservations about following the same code that applies to lower court judges. But for that reason, the chief justice is studying the question of whether to have a code of judicial conduct that's applicable only to the United States Supreme Court. So that's something that we have not discussed as a conference yet, and that has pros and cons, I'm sure. But it's something that's being thought very seriously about.

CHAKRABARTI: A couple of things there, Professor Frost. First of all, I can't recall what Justice Alito had heard expressed as some of the reservations they had about following the 1973 code that we talked about earlier. Do you remember what his reservations were?

FROST: And no, I don't have any record of that.

CHAKRABARTI: Okay. So we'll put that aside and hopefully maybe in the future we'll be able to dig that up. But then about this code, that the chief justice was then studying the question of whether to have it. Was that progress made on that?

FROST: No. And it's discouraging because that 2019 statement that the court was looking at this seriously was a really interesting sort of glimpse behind the opaque curtain that is the Supreme Court. It gave us a sense that the court was taking this seriously, and was going to start regulating itself. But it's been enough years since that 2019 testimony by Justice Kagan ... I assume the court is not trying to develop a code or it would have announced that earlier than this.

CHAKRABARTI: It's interesting also, though, that Elena Kagan had testified at this hearing. But as I said earlier, Chief Justice John Roberts did not this week at the same Judiciary Committee hearing that you were at. Do you think that was a mistake by the part of the chief?

FROST: I do think it was a mistake. I was really disappointed to read his letter where he refused the opportunity to testify, although he didn't say it explicitly. He strongly implied that it would violate judicial independence and the separation of powers for him to testify. And that strikes me as very odd, considering that I think it's more than 90 times the justices have testified since 1960 before Congress, including that testimony you just played from Elena Kagan, discussing the potential for a code of conduct.

Of course, justices shouldn't testify about the substance of the cases before them in their decisions, but of course, they should testify about the administration of the court and the methods that would improve and strengthen the court and give their input. And I think it would have helped if Chief Justice Roberts had shown up and testified and given his input to Congress.

CHAKRABARTI: I mean, in that letter, he references the United States Senate website saying that no president has ever testified before the Senate Judiciary Committee, and only three presidents have testified before any congressional committee in the history of the United States. But I would say he says directly that judicial independence is at stake here. Because he said testimony by the chief justice of the United States is exceedingly rare, as one might expect, in the light of separation of powers concerns and importance of preserving judicial independence. So he just comes out and says it.

FROST: Well, so maybe I was giving him the benefit of the doubt there. I would say that's a really disingenuous response because first of all, he was invited to testify or to designate an associate justice to testify. Didn't have to be him. That's what Chairman Durbin, his letter said, you or an associate. The chief justice said, well, the chief justice himself never testifies. So really, that's beside the point. Fine. Send an associate justice if you think you yourself shouldn't do it.

And second, the point about the president doesn't testify. The legislative branch engages in extraordinary oversight over the executive branch. There is no question that high level political appointees answer all the time for the conduct of the executive branch in front of Congress. Why shouldn't the court do that, too?

CHAKRABARTI: So I want to also quote something that came from another legal scholar. This is Laurence Tribe from Harvard Law School, professor emeritus of Harvard Law School. He actually submitted written testimony, I believe, and he said that, quote, I would be less than candid were I not to confess that I regard legislation to impose ethical norms in a binding way on the justices as eminently sensible. And then he says, I see such legislation as necessary, though probably not sufficient in a response to the current situation. What do you think about that?

FROST: Well, I'm glad to see him saying that he thinks that legislation would be sensible and necessary. I don't know what he means by sufficient, but perhaps he's suggesting that the problem is the enforcement of laws that apply to the Supreme Court, and that is a separate problem. First, we need to have clear ethical obligations that they follow. And next, we need to think about how best to police and enforce those limits.

CHAKRABARTI: So what would you ideally like an enforcement mechanism to look like?

FROST: So the Judicial Conduct and Disability Act, which is that law that applies only to the lower federal courts and provides methods of investigating alleged misconduct and then penalizing judges who engage in that misconduct. That's a good guide for us. I think it's worked fairly well for the lower federal courts. The frivolous complaints are very quickly dismissed because that's always a concern that somebody who's a disgruntled litigant would complain because they don't like the result.

Well, those complaints are quickly dismissed, and then serious complaints are investigated and can lead to as we discuss various forms of punishment, such as public statements of censure, plans going forward as to how to avoid future violations of the law, in extreme cases, referral for impeachment. But there are various mechanisms by which we've been using to police the lower court conduct. Lower court judges are also judges selected under the Constitution, nominated by the president, confirmed by the Senate. They've been abiding by these rules and laws for decades. And the Supreme Court justices should, as well.

CHAKRABARTI: Is lifetime appointment part of the problem here?

FROST: You know, I will say that I think this conversation should go beyond ethics, perhaps not right on this the show, but in general, with the conversation about the court, I think there's more that's going wrong with the Supreme Court today than just the problems with the ethics of individual justices.

So the lifetime tenure, many people pointed to that as a problem because justices are now selected at a very young age, younger and younger, and then they serve till they die quite frequently. Which is 40 to 50 years. To see that kind of power being exercised by people who are completely unaccountable to the electorate is worrisome to some. I do think that that's a very serious and important conversation, but one that's apart from the ethical conversation.

CHAKRABARTI: Okay. Well, so can you make the argument to me about why you retain, if you do, some optimism that a formal code of ethical conduct may eventually be applied to the United States Supreme Court? Because everything that you've said so far, Professor Frost, if I'm totally candid, it makes me think that we have both a historical and a political situation right now, and I would say even a cultural one. Again, in the view of what the court is supposed to mean, stand for. That is kind of stacked against any real meaningful change here.

FROST: So I do see some reasons to feel optimistic. One is that some of the senators at the hearing, Republican senators, did seem to acknowledge that there was some problems with transparency and with the justices failing to follow various ethical obligations. I heard no one say that Justice Thomas had not violated the law, because he did. And so I did hear some Republican senators say, look, you know, we do see that there's a problem. We do see that transparency and oversight is needed.

And that gives me some hope. I will also say that I think the court itself cannot view what's happening now as being good for it. And so I remain maybe mildly optimistic that some of these news stories and some of the oversight hearings by Congress might lead the court to take action to improve the situation for itself, which would be the best result.

CHAKRABARTI: You know, a common human trait is that you may not want to listen at all to what your critics say, but you might listen to your friends. I mean, I'm seeing that the American Bar Association is also saying not that the bar is a constant friend of the court, but that the bar is demanding that the Supreme Court adopt an ethics code. So is there sort of a groundswell happening within the legal world itself?

FROST: Yes, I feel that the justices are hearing from a lot of different sources, including, as I said, some Republican members of Congress, that they need to do better, that this is hurting them. I view it as a self-inflicted wound, that they are not taking action themselves to shore up their ethical obligations and their compliance with existing ethics laws.

So I would like to think that an institutionalist like Chief Justice John Roberts would realize the approach they're taking, which is there's nothing to see here and we're above the law anyway, is not effective to protect the court. And they should switch tact and embrace this moment as a chance to improve as an institution.

CHAKRABARTI: Now, I want to just quickly note that I don't actually believe that ethics codes or even offices of ethics and investigations are any kind of panacea, right? I mean, all Congress has to do is look at itself and find out how many examples of really ethically questionable behavior has never had any accountability applied to it.

So it's not like something magically would happen if the court was suddenly bound by an ethical code. But in the last minute that we have, Professor Frost, I wonder what you think may happen in the future if the court does not either internally adopt a code that the public can see and know about, or if Congress doesn't apply, what could the consequences be?

FROST: Well, I think we're seeing them play out right now. It seems like every day when I, you know, open New York Times website or the Washington Post or any number of different news sources, I see a story about the justices, a particular individual violating ethics rules. So unfortunately, I think the court will continue to suffer from these damaging news stories, unless and until it takes hold of the situation, creates a code for itself and then follows it.