This summer, the Senate Judiciary Committee approved legislation that would attempt to set ethics rules for the U.S. Supreme Court and a process to enforce them, including rules for transparency around recusals, gifts, and conflicts of interest. The bill, which still requires full Senate approval, is the latest in a series of proposals and attempts to reform or improve the Supreme Court in recent years. In this episode of We the People, we discuss various proposals to reform ethics rules surrounding the Supreme Court; how and whether these proposals could go into effect; and what the enforcement mechanisms could be. Law professors Daniel Hemel of NYU Law and Daniel Epps of Washington University School of Law join host Jeffrey Rosen.
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Today’s episode was produced by Lana Ulrich, Bill Pollock, and Samson Mostashari. It was engineered by Bill Pollock. Research was provided by Lana Ulrich, Samson Mostashari, Cooper Smith, and Yara Daraiseh.
Participants
Daniel Epps is the Treiman Professor of Law at Washington University School of Law. He writes at the intersection of constitutional law and theory, federal courts, and criminal law and procedure. He has co-written with Ganesh Sitaraman several articles examining various proposals to restructure the Supreme Court. He currently co-hosts Divided Argument with Professor William Baude, a podcast that analyzes the Court’s work.
Daniel Hemel is professor of law at New York University School of Law. His wide-ranging research explores topics in taxation, intellectual property, administrative and constitutional law, and nonprofit organizations. He has published more than 50 scholarly articles and essays in law reviews and economics journals, including a 2021 piece, “Can Structural Changes Fix the Supreme Court?”
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources:
- S.359 - Supreme Court Ethics, Recusal, and Transparency Act of 2023 (Sen. Whitehouse)
- S.325 - Supreme Court Ethics Act (Sen. Murphy)
- Daniel Epps and Ganesh Sitaraman, “The Future of Supreme Court Reform” (2021)
- Daniel Hemel, “Can Structural Changes Fix the Supreme Court?” (2021)
Excerpt from Interview
On how the court can most constructively address ethics concerns:
Jeffrey Rosen: Well, it's time for closing thoughts in this thoughtful debate, which really has helped us to understand the contours of the choices the court faces when it comes to ethics reform. Dan Epps how do you think that the court itself might most constructively address questions involving ethics in the Supreme Court?
Daniel Epps: So I do think that doing something to indicate that they're listening and hearing the criticism is good, and I do think that they have done some of that already in terms of the attachment to the letter to Senator Durbin in terms of the updates to financial disclosures that Justice Thomas has made indicating and trying to explain why he disclosed differently and how he's gonna disclose differently in the future.
So, I think those kinds of things would be good. I think maybe rather than doing it responsively maybe just coming out in the next year with a kind of statement on the website that says, you know, "Look, we thought about this, here's what we see is the problem, here's what we're gonna do differently, here's why we're not gonna do other things differently, and just take it or leave it."
I think that the court would look better for the court to not be in this constant defensive posture responding to other things, but just to be out there and saying, "Look, here's what we're gonna do."
Jeffrey Rosen: And Daniel Hemel, last word in this great discussion to you, how do you think the court might most constructively address questions involving ethics and the Supreme Court?
Daniel Hemel: I agree with Dan that the Supreme Court coming out and making an affirmative statement explaining what it's gonna do and what it's not gonna do would be wise. We've seen the court budge on other issues of transparency in the last few years so like live-streaming audio of Supreme Court oral arguments. That was a big change and I think most court watchers believe that it was a change for the better, even though 20 years ago it seemed almost unimaginable. So internally driven Supreme Court reform can raise the court's esteem in the eyes of lawyers and lay people even if it doesn't fundamentally change the court's position in American life.
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