Two Supreme Court Justices Testified Before the Senate. Their Differing Views on Ethics Reform Were Telling.

On Tuesday, Justices Elena Kagan and Amy Coney Barrett testified before Congress, seeking a $14 million budget increase for security measures to protect the justices and their families. Congress should take the opportunity to do something more than just boost the court’s budget: It should create a robust inspection office to oversee the millions of dollars’ worth of gifts the justices receive each year, assess the justices’ recusal responsibilities, and address other ethics issues. Doing so would relieve the court of diverting its other resources to these ethics matters or, worse, undervaluing them altogether. It would also make the justices safer in the long run from a public increasingly dissatisfied with their arbitrary secrecy.

To understand the delicate balance between safety and ethics on the court, we need to go back to 2022, when, for the first time in SCOTUS history, a draft opinion was leaked in Dobbs, the case overturning Roe v. Wade. Outside the court, the leak sparked outrage about the substance of the opinion ending the constitutional right to abortion. But inside the court (and in conservative media circles), a procedural concern seemed to matter more than the constitutional rights the justices were about to end: Who had leaked the draft?

In trying to answer that question, though, the court had a problem. It didn’t have an entity capable of investigating the leak. The closest woman for the job was Gail Curley, the Supreme Court’s marshal. So, the day after the leak, the court ordered the marshal’s office to perform a task it had never done before: probe the more than 80 employees who might have had access to the Dobbs opinion to determine who could have leaked it to Politico. Months later, the marshal proposing tweaks to the court’s IT procedures but concluding that the office was unable to find the source of the leak.

This outcome wasn’t surprising, given both the complexity of the court’s ask and the marshal’s limited experience conducting these types of investigations. The position was created by statute in the 1800s; the marshal serves as the chief of police for the court, attends each court session, and handles ministerial duties, like paying the justices and their staffs.

But members of the marshal’s team had their hands full that summer with a new task: ratcheting up security. Following the Dobbs draft and the eventual final opinion, threats to the justices increased. A man from California traveled across the country to attempt to assassinate Justice Brett Kavanaugh. Protesters went to the houses of Chief Justice John Roberts, Justice Samuel Alito, and Barrett. An Alaska man was arrested for sending hundreds of graphic threats through the court’s website a few years later. And, most recently, Barrett’s home was subject to fake police reports of gunshots in a harassment technique known as swatting. Congress passed the Supreme Court Police Parity Act of 2022, which allowed the marshal’s office to provide 24/7 protection to the justices, but this apparently hasn’t been enough.

It’s unclear whether these threats have affected the justices’ decisionmaking. One gross take on the issue comes from Mike Davis, the founder of the conservative legal group the Article III Project, who played a key role in Barrett’s nomination. In a statement as chilling as it is insulting, Davis suggests that the protesters triggered a “Mother Hen” instinct that led the justice to rule against the administration on the birthright citizenship case. The second possibility for Barrett’s vote, Davis muses, is that she simply lied about her judicial philosophy to get through the confirmation process.

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Davis’ two possibilities, sexist and cartoonishly partisan as they are, highlight an important point. The court does have a security problem, but it also has an ethics problem.

In practically any other branch of the federal government, ethics issues would be handled by an inspector general’s office. These offices run parallel to the agency’s substantive work, addressing broad management issues and conducting investigations of fraud both in and around the agency. They are usually staffed by lifelong public servants who, in an ideal world, are focused solely on making sure government officials properly use their taxpayer-funded budgets and legal authority. But the federal courts have no such office. A former Justice Department inspector general argued that “an inspector general would be good for the U.S. Supreme Court and it would help improve trust in the court.”

An inspector general’s office, rather than the marshal’s office, would have also been in charge of probing the Dobbs leak. Before the marshal’s findings were released, the court hired the Chertoff Group, a private security consulting firm, to review the report; it concluded that the marshal’s office had conducted a sufficient investigation. But perhaps most saliently, the whole incident brought to light just how much the Supreme Court had relied on this particular security firm in the past. After an inquiry from Congress, the court admitted that it had given the Chertoff Group over $1 million for private security work, including at-home justice security in 2018 and COVID safety protocols in 2020. The existence of a private contract between the firm and the court had never been revealed before, because federal law did not require disclosure. It is unacceptable that a public institution already so clouded in secrecy either chooses to or must rely on a private consulting firm.

At the hearing, Kagan and Barrett briefly discussed the possibility of an enforceable code of ethics and office of inspector general. Barrett described many versions of these reforms as “complex,” “tricky,” and filled with “awkwardness” in determining how to create an office that would respect the court’s rule as both independent and constitutionally supreme. Although Kagan was polite in doing so, she made a point of disagreeing with her colleague, noting that she was more settled on the idea that there should be an enforceable code of ethics, in contrast with the court’s self-imposed 2023 guidelines, which did little to inspire trust.

And some more trust would be a good thing for a court that maintains “bafflingly unnecessary obstacles” to keep the public out of its business. The justices hear arguments behind closed doors with limited public access, with no video or live audio. They then go into a private room no one else is allowed to enter so that they can deliberate in secret. They pick multidecade-long feuds with one another in the war of ideas, including in the dead of night, with emergency orders that aren’t signed by any of the justices. Then, on a hot D.C. morning, usually in June, extremely consequential opinions pop up on the court’s website that give and take the rights of millions of Americans. With the justices’ dark robes and obscure internal rules, SCOTUS is one part Jedi Council, one part Fight Club.

There are steps we could take to make the court seem more like the public body it’s supposed to be. A proposal called the Supreme Court Ethics and Investigations Act would create two new offices within the court, an Office of Ethics Counsel and an Office of Investigative Counsel. The OEC would advise the justices on recusal issues, gifts and financial disclosures, and unauthorized disclosure of official court documents, like the Dobbs leak. This office would have been quite helpful after a report that Justice Clarence Thomas had received numerous gifts from billionaire Republican megadonor Harlan Crow. The OIC would review and act on complaints made against members of the court. Lower federal courts have similar investigative procedures for reviewing complaints, but the Supreme Court does not. This week was the first time since 2019, since Dobbs and its aftermath, that a justice testified in Congress about the court’s budgetary and security needs. And to be clear, Congress should heed Kagan and Barrett’s request for an increased security budget. The government employees protecting the court deserve to be paid fairly, and the threats against the justices and their families are real. But it’s troubling that the branch that Alexander Hamilton said had neither “force nor will, but merely judgment,” needs so much force to stay operational. To be safer in the long run, the court could use not just force but a little help on the judgment front.

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