Is US Senator Chris Murphy's bill to "subject Supreme Court Justices to... ethical code" just saber rattling? (Amy Klobuchar: "Get your act together")

Question

In the 2022-03-27 ABC News video Ginni Thomas texts to Meadows is a 'textbook' case for recusal: Sen. Klobuchar | ABC News after 03:24 ABC's Jonathan Karl quotes two text messages from Ginni Thomas, wife of US Supreme Court Justice Clarence Thomas and ends without a specific question, leaving Senator Amy Klobuchar an opportunity to issue what seems to be a statement of position on the issue of the (at least apparent) lack of any current ethics guidelines¹ for the justices of the US Supreme Court (my transcription with assistance from closed captions):

Karl: ...I mean, my goodness!

Klobuchar: Johnathan the facts are clear here. This is unbelievable. You have the wife of a sitting Supreme Court justice advocating for an insurrection - advocating for overturning a legal election to a sitting president's chief of staff. And she also knows this election - these cases are going to come before her husband.

This is a textbook case for removing him, recusing him from these decisions. And I don't think - all I hear is silence from the supreme court right now. And that better change in the coming week, because every other federal judge in the country except Supreme Court justices would have a guidance from ethics rules that says you've gotta recuse himself.

Thomas himself recused himself in 1995 from a case involving a school because his son was going to that school. Justice Breyer recused himself when his wife was on the board of an entity and that case came before the Supreme Court.

Karl: And if he doesn't? If he doesn't recuse himself?

Klobuchar: Justice Rob... I mean the entire integrity of the Court is on the line here, and they had better speak out on this because you can not have a justice hearing cases related to this election... and in fact the ethics rules that apply to all the other federal judges say that if it involves a family member - appearance of impartiality - they have to recuse themselves.

So not only should he recuse himself, but this supreme court badly needs ethics rules. Chris Murphy's leading a bill (that) I've long been on (and) supportive of that says basically "Get your act together, get ethics rules in place." And I would hope justice Roberts, who I respect, will stand up and get those ethics rules in place. They've gotta do it, they should do it themselves.

I see two related but separate elements in Klobuchar's position:

1. Thomas must recuse or perhaps be recused² in (at least 2020 presidential) election cases.
2. (the focus of this question) The Supreme Court had better get its "act together, get ethics rules in place" or else Congress will make them do it (or do it for them?)³.

Wikipedia's Chris Murphy; Congressional and judicial ethics reform says:

Murphy sponsored a bill that would subject Supreme Court Justices to the same ethical code that applies to other federal judges and suggested in 2011 the possibility of an investigation to decide whether Justice Clarence Thomas had committed ethical violations that would justify removing him from office. The matter in question was Thomas's connection to Harlan Crow⁴¹ and other supporters of the Republican Party.⁴² Murphy circulated a draft letter to other members of Congress asking the House Judiciary Committee leadership to hold a hearing on the Supreme Court Transparency and Disclosure Act, which would end the Supreme Court's immunity to judicial ethics laws.⁴³

⁴¹McIntire, Mike (June 18, 2011). "Friendship of Justice and Magnate Puts Focus on Ethics". The New York Times. Retrieved February 3, 2016.

⁴²Millhiser, Ian. "Rep. Murphy Says Thomas' Actions Call Into Question Whether He 'Can Continue To Serve As A Justice'". Think Progress. Retrieved March 10, 2012.

⁴³Millhiser, Ian. "Rep. Chris Murphy on Thomas Gift Scandal". Think Progress. Retrieved March 10, 2012.

Question: Is US Senator Chris Murphy's bill to "subject Supreme Court Justices to the same ethical code that applies to other federal judges" just saber rattling, or does it still have traction in congress?

Of what bill does Klobuchar speak? What's its status, recent activity and likelihood⁴ of passing?

To me it looks like mere saber rattling in hopes to shine enough light on the Supreme Court that it embarrasses them into doing it themselves, but I've only known about the legislation for about 45 minutes.

---

¹for issues of ethical rules (or lack thereof) for the US Supreme Court, see references cited in Did the US Supreme court really "exemp(t) themselves from all the ethical rules that all the other federal judges are abided by"? If so, how? and its answers.

²Klobuchar: "This is a textbook case for removing him, recusing him from these decisions."

³Klobuchar: "Chris Murphy's leading a bill (that) I've long been on (and) supportive of that says basically 'Get your act together, get ethics rules in place.' And I would hope justice Roberts, who I respect, will stand up and get those ethics rules in place."

⁴for issues of likelihood and its prediction, see references cited in How does Skopos Labs (cited by govtrack.us) predict the probability of legislation passing? What is their track record & is it the first of its kind?

Answer 1

I'm not sure what you mean by saber rattling, but it is difficult to see how such a bill could have any real effect.

Consider how such ethics rules are enforced. In other words, when a judge in a lower court fails to recuse him or herself in a case where such a recusal is required by ethics rules, what happens? The answer is that a party to the case uses this fact as a basis for its appeal. The higher court considers whether the judge should have recused him- or herself, and, if so, sends the case back to the lower court so it can be tried again by a different judge.

This obviously doesn't work for supreme court justices because there is no higher court. One might imagine a system in which the other justices would rule on a recusal request, but this would be fraught with peril since the same justices would in the end be voting on the outcome of the case -- precisely the sort of conflict of interest that recusal is supposed to avoid.

Another frequently heard explanation for the lack of statutory ethics requirements for supreme court justices is that congress has no authority to enact such requirements because of separation of powers. But through the system of checks and balances, congress actually can impeach and remove a justice whose failure to recuse him- or herself constitutes a "high crime or misdemeanor," a phrase that is often misunderstood but which, I am convinced, includes an abuse of power such as participating in the disposition of a case in which the justice has a personal interest (even indirectly through a family member or close associate).

So suppose congress passed such a bill, and you had some case before the supreme court, where your neighbor won in the district court but the appeals court had ruled in your favor. Your neighbor is a close relative of one of the justices, but the justice does not recuse him- or herself. What can you do? Nothing. Even if you manage to get congress to impeach and remove the justice, you've still lost your case.