Ethics, Caseload, & Expertise Act
Let’s lead the world again in equality, justice, freedom, respect, and personal dignity.
We need to fix the Supreme Court and modernize it.
We need better and standardized ways to discipline and remove bigoted and bad judges nationwide and also judges whose ruling show they clearly don’t care about democracy, voting rights, or human rights.
Fortunately, it is very clear Congress has broad powers to structure any department of our government, including the federal courts.
In US law, we have no rules for ethical conduct for judges on the Supreme Court and no way to review, discipline, or remove one of them, no matter how terrible the judge is.
This loophole is insane.
Most states allow lower judges to review and discipline or remove their state Supreme Court judges.
Yet we have no accountability for Supreme Court judges whatsoever.
Impeach Terrible Brett Kavanaugh
This lack of ethical standards and accountability became very obvious and a huge controversy when Brett Kavanaugh was installed on the Supreme Court in an extremely bitter, circus-like, partisan confirmation.
Trump surely chose Kavanaugh because he is an extremist on presidential power, trying to make presidents more like dictator/kings.
- Kavanaugh has argued presidents shouldn’t be distracted by criminal investigations, civil lawsuits, or even questions from a prosecutor.
- Kavanaugh has argued a president doesn’t have to enforce a law even if a court upholds the constitutionality of the law.
Putting Kavanaugh on the Supreme Court while Trump faces massive legal problems is like letting Trump install his own judge and jury!
Many federal judges were very troubled by the nomination of Brett Kavanaugh and wanted to stop it, for many reasons.
Doctors, lawyers, professors, and other concerned citizens filed 83 different ethics complaints against Kavanaugh in the US Court of Appeals for the D.C. Circuit, the court where Kavanaugh served before he got promoted to the Supreme Court.
- Some complaints alleged Kavanaugh repeatedly committed perjury under oath during his first televised nomination hearings to get onto the D.C. Circuit Court in 2004 and 2006.
- Others involved the multiple allegations of sexual assault in his history.
- Other complaints involved Kavanaugh’s false or misleading statements about his drinking and the sexual allegations during his 2018 televised Senate nomination hearings to the Supreme Court.
- Many complaints involved his repeatedly explosive temper and extreme partisan bias during those televised Supreme Court hearings.
Apparently, Kavanaugh even supports water boarding and torture, a frightening viewpoint for a judge on the Supreme Court.
- Nearly all legal scholars believe George W. Bush’s torture program encouraged war crimes.
- John Yoo was the primary author of the Bush torture memos, explaining a supposedly “legal” rationale for allowing torture.
- Shortly after the writing and circulation of the torture memos, Kavanaugh proposed John Yoo be made a federal court judge, with life tenure.
- Fortunately, the idea went nowhere.
Over 2,400 law professors agreed Kavanaugh’s behavior during the Senate hearings “displayed a lack of judicial temperament that would be disqualifying for any court.”
The D.C. Circuit court found the allegations of 83 ethics violations “serious” and warranted investigation but asked Supreme Court Chief Justice John Roberts to transfer them to another court.
Roberts transferred the 83 ethics complaints to a special panel of judges from the Republican-oriented 10thCircuit Court of Appeals, led by a judge Kavanaugh vetted (helped choose) while working in the Bush White House.
Even this friendly 10th Circuit Court of Appeals concluded the allegations were “serious” but conveniently claimed it had no jurisdiction now that Kavanaugh was a Supreme Court judge.
- They decided that because Kavanaugh became a judge on the Supreme Court, the Judicial Conduct and Disability Act no longer applies to him!
- They did this even though that law requires complaints against judges must be addressed as long as the judge still performs judicial duties.
- They actually argued that the Judicial Conduct and Disability Act limits “judicial duties” to the Court of Appeals, not to the Supreme Court, so Kavanaugh is no longer performing judicial duties!
This is insane.
In a 2011 report, Chief Justice John Roberts wrote that justices consult the judicial ethics codes but they do so voluntarily, suggesting Roberts may not even believe Congress has any right to make ethics rules for the Supreme Court!
In August 2019, the Committee on Judicial Conduct and Disability itself confirmed the terrible decision of the 10th Circuit.
- They claimed even conduct before Kavanaugh was on the Supreme Court cannot be reviewed anymore simply because he is now on the Supreme Court.
- They blamed Congress for never establishing any ethical standards or accountability for Supreme Court judges.
Now only Congress has any power to take action against Kavanaugh or to establish ethical standards and a review process for Supreme Court judges.
We should impeach Kavanaugh.
Or a president could simply demote Kavanaugh (or any Supreme Court judge) by nominating him to a lower court.
And the Senate could confirm the demotion. This has never been done, but would be perfectly legal.
The Supreme Court Needs a Code of Ethics
We already have a Code of Conduct for United States Judges that applies to all our federal judges except the Supreme Court.
Congress should simply pass a law saying the same code applies to the Supreme Court.
But it should go farther. Supreme Court judges are now:
- giving partisan speeches
- getting large speaking fees
- failing to recuse themselves from cases despite conflicts of interest
- accepting expensive gifts from outside organizations
- accepting all-expenses-paid-trips to fancy resorts
When Supreme Court Justice Antonin Scalia died, he was staying in a 1,100 square foot, $700-a-night room overlooking a lake at a Texas resort for free.
Our laws say judges can’t accept gifts from organizations with cases submitted to the court, but there’s an exemption for food, lodging, or entertainment from a person or family who owns the property.
Supreme Court judges now sometimes do accept lavish gifts from organizations with business submitted to the court.
We should make our code of ethics even stronger for Supreme Court judges than other federal judges. Elizabeth Warren argues they shouldn’t be able to get:
- large speaking fees
- all-expenses-paid trips
And the Supreme Court should have very strict rules for stock ownership to reduce their conflicts of interest and need for recusal.
We should stop letting Supreme Court judges decide for themselves whether or not they have a conflict of interest requiring their recusal from a case.
We can create a review board in which federal judges police their own using the “good behavior” standard, as detailed in the article on this website “Throw Out Judges, Politicians Who Cripple American Ideals.”
We can make our Supreme Court judges subject to the decisions of this review board.
To protect our sacred ideals and values enshrined in the Declaration of Independence and our Constitution, we should require the use of judges who are experts in human rights, on Constitutional law, and environmental issues on the judicial review boards or committees.
We Need a Much Larger Supreme Court
Congress can pass a law and change the number of Supreme Court justices at any time. It has already changed the number from a low of 5 to a high of 10.
When Congress chose the number 9 in 1869, the US was about 1/10th our size now. At that time, our government and laws were far smaller and less complex.
But now our Supreme Court is understaffed and overloaded with cases.
- In 1880, the Supreme Court had 9 judges and it received requests to hear only 417 cases.
- In recent decades, the number of cases submitted to the Supreme Court has skyrocketed to approximately 7,000 to 8,800 each year.
- During the 1940s, our Supreme Court decided an average of 180 cases each year.
- In the last 15 years, our Supreme Court has only decided an average of only 80 cases each year.
- Now law clerks at the Supreme Court do most of the screening and weeding out of 99% of the submitted cases and write most of the first drafts of opinions.
In fact, most other countries have far smaller populations but much larger high courts. And most other countries don’t have life tenure for their high court judges.
To better handle the caseload, we could expand the Supreme Court to 30, 40, or even 50 judges. This would make it far more democratic, diverse, and prepresentative of our population.
As a thought experiment and comparison, just imagine how undemocratic and dangerous Congress would be if it only had 9 members.
Law professors point out expanding our Supreme Court to 30 or more would make the Supreme Court:
- more comparable to the size of our federal circuit courts
- less dangerously powerful
- more democratic, diverse, representative, and effective
- less prone to narrow and arbitrary split decisions by a single swing vote
A much larger Supreme Court would also have far more regular, natural turnover, so presidents wouldn’t be fighting over rare nominations.
With a larger Supreme Court, we could rotate judges for cases, like our federal courts do.
An expert judicial review board could also make sure that any cases going to the Supreme Court that deal with human rights (such as immigration or discrimination), Constitutional law (such as presidential powers), or the environment get assigned to judges with the appropriate expertise.
It’s very undemocratic to have fairly young federal judges appointed by a president instead of elected and then serve for life, influencing our policies for 40 or 50 years.
When our Founding Fathers made this rule in the Constitution in 1787, the average life expectancy was only 35 and a Supreme Court justice served only an average of less than 8 years.
So a lifetime appointment means something very different than it did then. Supreme Court judges now often serve for 25 or 30 years.
It’s especially bad now that corrupt billionaires have trained and brainwashed judges to sabotage our core American values and ideals.
The Founding Fathers would have been shocked to see elderly judges on the Supreme Court staying so long, the court doesn’t have enough turnover to be truly representative of the people.
Life tenure problems:
- Life tenure lets bad judges stay forever.
- It is undemocratic.
- Some judges continue until they are mentally unfit, like William Douglas, who barely functioned during his last 10 months after a stroke.
- His fellow judges actually agreed to nullify any decision in which he cast the deciding vote.
- Some elderly judges let their law clerks largely write their opinions.
One popular proposal among Constitutional scholars is 18 year terms for Supreme Court judges, with a new judge and a retiring judge every 2 years.
- With 9 Supreme Court justices, this would give each president 2 nominations during each term.
- This would reduce the circus-like fights that now come with Supreme Court nominations.
Scholars disagree on whether changing term limits for Supreme Court judges would require a constitional amendment.
If the judges removed from the Supreme Court kept the right to serve on lower federal appeals courts for their lifetimes, Congress could probably pass it as ordinary legislation.
This is because the Constitutions talks about lifetime tenure but doesn’t define what is meant by a judge’s “office.”
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