It’s Time for the Supreme Court to Establish New Transparency Precedents

Our nation’s court system depends on trust and impartiality. Judges are supposed to recuse themselves from cases in which they have a conflict of interest. But because of outdated disclosure standards in our nation’s court system, the public too often lacks the information necessary to make sure that potential conflicts are appropriately dealt with. As a result, confidence in our court system is less than it could or should be.

High-ranking federal officials are all bound by some common disclosure standards enacted by the Ethics in Government Act of 1978. These standards include:

• Disclosure of outside income over $200, spousal income over $1,000, and gifts worth more than $350
• Assets over $1,000 and liabilities over $10,000
• Positions held with non-governmental organizations
• Details and expenses pertaining to reimbursements for travel over $350

In addition, members of Congress and some congressional staff, along with high-ranking leaders within the executive branch, are also bound by the STOCK Act, which requires disclosure of stock market transactions within 45 days. They are also required to disclose information about their home mortgages so that the public can see they have not been offered special deals or preferential rates.

The U.S. Supreme Court and many other judges within the federal court system are not bound by the STOCK Act, and they do not have to disclose information about their mortgages. But three other differences are of greater concern.

First, unlike Congress and the executive branch, each of which have independent arms to oversee and monitor the financial disclosure process, the Supreme Court polices itself on financial disclosure.

Second, both Congress and the executive branch make financial disclosure forms available electronically (Congress online, and the executive branch in response to a webform request), generally within a few days of when they are filed. The Supreme Court, however, remains stuck in the 20th century, requiring inquirers to fill out a form requesting the information and then waiting for it to be processed. Once the request is filled, the person must make an appointment to physically pick up the information at the Court in Washington D.C. and bring a check to pay for the 20-cent-a-page printing costs.

In addition, the Court often takes more than a month after the justices file their disclosure douments in May to make them publicly available. This means that when the most important decisions are announced in June, journalists and others do not have information available to report on any possible conflicts faced by the justices involved in the decision.

Lastly, while Congress and the executive branch maintain disclosure forms indefinitely, the Court retains disclosure forms for just six years, forcing outside groups to maintain and conserve these vital public records. This practice is especially troubling since the average tenure of a Supreme Court justice far exceeds the six-year period.

The courts face complex challenges to their impartiality. Better disclosure would give the public more faith in the judicial branch.

Federal justices are barred from hearing cases in which they have a direct financial interest. This includes cases where they own stock in one of the parties in the case.

Unlike Congress and the executive branch, the Supreme Court is not directly lobbied. But outside interests, including corporate interests, do actively weigh in on cases before the Court. They do so through amicus curie (“friend of the court”) briefs. There are no rules requiring justices to step aside if they own a stake in one of the amicus filers, but perhaps such rules should be discussed.

According to Fix the Court, an advocacy group calling for reform of the Court’s financial disclosure standards: “the three justices that own shares of common stock – Chief Justice Roberts and Associate Justices Stephen Breyer and Samuel Alito – side with the amici whose shares they own nearly 70 percent of the time.”

A study by the Center for Public Integrity (CPI) found similarly troubling news at the appeals court level. Sixteen federal judges ruled in 26 cases in which they had financial interests in one of the parties involved in the case, according to CPI. The judges involved sent apologies to the parties noting their error in not recusing themselves and offering the parties the opportunity to have their cases reheard by independent, non-conflicted judges. Five of the cases were reheard; none of the decisions were reversed. But there should be a process for verifying that judges are only hearing cases in which they have no direct financial stake.

Fix the Court is calling for several reforms to bring the Supreme Court up to the same standards followed by other high federal officials.

• The STOCK Act should be amended to include Supreme Court justices and other federal judges.
• Supreme Court justices should be required to place their financial investments in a blind trust.
• Financial statements of federal court judges, including Supreme Court justices, should be posted online within days after the documents are filed.
• The Supreme Court should form an independent body to administer a code of ethics and disclosure practices consistent with those already in place in the other two branches of government.

All courts in the United States look to the Supreme Court to set the standards and precedents that guide their work. It is time for our nation’s highest court to set the highest standards in ethics and disclosure. Proactive disclosure and following the best practices of other branches of government will assure that lower courts have a standard worthy of following.