Reforming the Courts Through Resignations

Ian Ayres

Ian Ayres & Richard Re

In the wake of recent controversies and apparent ethical lapses at the Supreme Court, the justices have now agreed to abide by a “code of conduct.” But while this new code outlines laudable principles, it conspicuously lacks any enforcement mechanism. We suggest that the justices rectify that shortcoming and, in the process, solidify the federal judiciary’s commitment to ethical behavior. In brief, the justices should have to resign if a bipartisan group of federal judges so requests. 

In general, efforts to reform the Court confront two major challenges. First, they must avoid partisan gamesmanship. Our polarized politics will gin up many complaints against the justices, and most will be meritless or manipulative. The justices need a principled way to dispose of these flimsy claims. Second, reform should have bite. Ethical principles can garner public respect only if flagrant transgressions generate consequences. And judges, like the rest of us, are far more likely to pay attention when rules are enforceable.

The Constitution itself provides an enforcement mechanism: any federal judge can be removed from office through impeachment. But impeachment requires separate action by both houses of Congress, including conviction in the Senate by a two-thirds vote. And impeachment is available only for “high crimes and misdemeanors,” which may not encompass serious ethical lapses. Relying on impeachment therefore guarantees that judicial ethics are underenforced.

Impeachment’s shortcomings have only grown more severe. In the past, professional norms have disciplined the third branch. In 1969, for instance, Justice Abe Fortas was shamed into retirement after a series of judicial ethics scandals. Most significantly, Fortas was paid $20,000 by a businessman who was under investigation by the Department of Justice. Even though Fortas returned the money and recused from the businessman’s case, widespread criticism helped bring about his resignation.

Today, by contrast, it is easy to imagine a justice refusing to quit, no matter what. Professional norms have attenuated, and political polarization has created strong partisan allegiances around each justice. These changes in legal culture also undermine the effectiveness of impeachment. If even a minority party is determined to keep a justice in office, it can block the two-thirds vote required for removal. Reform could occur through a constitutional amendment—but that is perhaps the one mode of reform even less politically feasible than impeachment.

We propose another way. First, Congress should create a judicial ethics council with partisan balance and a supermajority voting requirement. Second, federal judges and justices should commit to resign if the council so recommends. This proposal enables the judiciary to police itself, thereby enhancing its public legitimacy while staving off undue interference from the political branches.

To illustrate, a federal statute might create a Supreme Court ethics council comprised of, say, 20 randomly selected lower court judges, each with a two-year term. The resulting council would reflect the bipartisan makeup of the federal judiciary. To further protect against political favoritism, the council might be able to call for a justice’s resignation only if more than, say, three-quarters of its membership so voted.

Jurists’ commitment to resign, if the council so requests, would build on existing practice. Already, federal judges routinely step down subject to the confirmation of their successors. Justice Stephen G. Breyer recently gave this practice a twist by deeming his own retirement effective at the end of the Court’s term—but only if his successor had been confirmed by that time. What we propose is essentially a new kind of conditional retirement, one linked to a formal finding of unethical conduct.

This non-partisan system of judicial ethics should appeal to jurists, as well as to politicians from both sides of the aisle. When the system is established, nobody would know which judges or justices might later engage in wrongdoing. And if nobody knows whose ox will be gored, then serious, bipartisan ethics reform is feasible—or, at least, more feasible than under any other approach. Moreover, judges and justices would have an interest in making this kind of commitment, so as to fortify the judiciary’s legitimacy.

In addition, judges and nominees alike would have a hard time explaining their reasons for declining to participate. Why, after all, would a judge refuse to be bound by the rulings of a politically balanced group of her own peers? Congress might even encourage participation by establishing a default rule that all new judges opt into the ethics regime, unless they expressly decline to do so before their confirmation vote.

Some justices might wince at the prospect of being subject to discipline by members of the “lower” federal courts. But the justices work together too closely to be impartial toward one another. By comparison, a large group of tenure-protected federal judges would be ideal, provided it is fairly composed of nominees from both major political parties.

A more serious objection is that a justice could attempt to renege on a conditional resignation. But the commitments could be rendered binding by court rules or a federal statute. Doing so wouldn’t transgress the Constitution, which allows federal judges to leave office through resignation, including resignations conditioned upon future events. And the kind of resignation that we envision would only promote the constitutional values of judicial independence and impartiality.

With courts at the center of nearly every major policy issue, critics are right to insist that federal judges abide by enforceable ethics rules. Non-partisan processes and conditional resignations meet that need. They create a practical remedy for judicial misconduct, while safeguarding both the judiciary’s independence and its public legitimacy.