Strict Scrutiny - We Need to Talk About Ethics Reform

Episode Date: October 1, 2026

In the fifth and final installment of our Hot Supreme Court Reform series, Kate speaks with Gabe Roth, executive director of Fix the Court. What would a meaningful and enforceable set of ethics rules look like for the Supreme Court justices? Why isn’t there an Inspector General for the judiciary? How are there no real rules around recusals? Roth makes the case for these nonpartisan reforms and more.Take the Strict Scrutiny survey.New Strict merch available here.You can now listen to Strict Scrutiny for CLE credits in California, New York, Texas, Pennsylvania, Illinois, Virginia, North Carolina, Georgia, Washington, and Oregon! More info at crooked.com/strict_cleGet tickets for STRICT SCRUTINY LIVE on November 6th in Washington, DC: Crookedcon.comBuy Melissa’s book, The U.S. Constitution: A Comprehensive and Annotated Guide for the Modern ReaderBuy Leah’s book, Lawless, now out in paperbackFollow us on Instagram, Threads, and BlueskyFor a transcript of an episode of Strict Scrutiny please email [e-mail]

Strict scrutiny is brought to you by Americans United for Separation of Church and State. Guess what, folks? It's back to school season. And this year, five million children across Texas are going to be greeted by, wait for it, the Ten Commandments in their classrooms. Texas politicians passed a law requiring the Ten Commandments to be displayed in every public school classroom, forcing their religion on every kid in those schools. 28 families in Texas, supported by Americans United for Separation of Church and State, are taking the fight to the Supreme Court. And we need to be. you to amplify their voices before the Supreme Court gets its hands on this case.

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Mr. Chief Justice, please support. It's an old joke. When I argue, men argues against two beautiful ladies like this, they're going to have the last word. She spoke not elegantly, but with a little bit of them. unmistakable clarity, she said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our legs. Hello and welcome back to strict scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm Kate Shaw, your lone host for this edition of our special bonus series, Hot Supreme Court Reform September. And for this installment of our series,

I'm delighted to be joined by returning guest Gabe Roth, who's the founder, and executive director of Fix the Court, which for over a decade has been focused monomaniically, you might even say, and I say that with admiration and appreciation, on reforming the Supreme Court and making it more democratically accountable. Gabe, welcome back to strict scrutiny. Thanks so much for having me back, Kate. So as you know, Gabe and listeners by now should know, we are spending September and just a sliver of October doing weekly deep dives on various SCOTUS reform proposals. We've talked about term limits and court expansion and jurisdiction stripping. And if you haven't listened to those episodes,

please make sure to go back and do that. They're great conversations. But for today, I want to focus on Supreme Court ethics, although maybe at the end of the conversation, we'll sort of broaden things out a bit. So, Gabe, Supreme Court ethics are something very much in your wheelhouse. This has been something that you've focused on for quite some time. And maybe before we talk about reform proposals, let's take a couple minutes and just identify the problem. So how would you describe the problem with the Supreme Court when it comes to ethics? I think if you just, yeah, broadened it out, fix the court has, since we launched in 2014, has called the Supreme Court the most powerful, least accountable part of our federal government.

And I think that's even more so now than it was when we started in 2014. And so I think the problem is that if we see something wrong, if we see some ethical malfeasance, there's really no way to fix it because there is no, impeachment and removal, that's just never going to happen. And the Supreme Court has been articulated by some of the justices believes, I think, inaccurately, that it is above some of the laws that Congress passes. So, so, you know, if a justice, just to give an example is accepting lavish gifts and going on all these free trips paid for by someone who clearly has a view on how the Supreme Court should be ruling in cases, there's, at least currently little that we, the public

and the public through its representatives in Congress can do to sort of tamp that down. So I think there just needs to be stronger rules of the road, maybe some different personalities of the court down the line as well. But I think just as a sort of basic level, the way I like to think about it is if you're going to have a court that has arrogated to itself so much power, right, you and I were in college when Bushy Gore came out. And so the idea that the Supreme Court decides an election, I mean, the Supreme Court came down with a major election case just last night. We're recording this on the 15th. So on the 14th, they came out with a major election ruling. They're deciding many aspects of all our elections. The Supreme Court is going to have this much power to

decide life or death and health care and voting and gerrymandering and elections and health care access and not so much more. They should follow some of the same rules that other branches of government and even the lower court judges have to follow. So that's sort of like the big picture is like, you know, there's definitely a problem. And I think it's given all the power that justices have, they should be looking elsewhere in government. following some of those rules. Yeah. So this is an institution with enormous power that it has asserted for itself over everything

from elections, immigration, abortion and bodily integrity, public health, the environment. I mean, the list goes on. And they right now are subject to no meaningful accountability mechanisms short of impeachment, which under the Constitution is virtually impossible in a highly polarized moment where you need supermajorities in the Senate. to actually remove someone for office pursuant to the impeachment provisions of the Constitution. So enormous public power, enormous public power for life, and very little accountability. And so it's not only important that I think that the Supreme Court, like other government officials, be subject to some kind of ethics rules. In some ways, it's the most important branch to subject to binding ethics rules because they don't stand for regular election.

And they're not hauled before Congress for regular oversight like members of the executive branch, right? there just aren't the same kind of checks and accountability mechanisms. And so it seems really important that they be subject to binding ethics rules. And you alluded to this a little bit, but Gabe, will you say a little bit more? And I think this is very much part of the problem about what some of the justices seem to think about the applicability of the ethics rules that constrain all other members of public office to them. Like, how do they communicate their positions on whether whether they're bound at all by the laws that do exist. I mean, I think you're teeing me up for the Justice Alito interview in the Wall Street Journal

three years ago, and I'm happy to elaborate on that. But basically, he told the Wall Street Journal editorial board that Congress can't make laws that bind the justices for any sort of reason, which is super ironic because Justice Alito, the entire 36 years he's served in the federal judiciary, has filed and submitted. annual financial disclosure report, which is required under 5 U.S.C. 13101 and following that he file. The justices actually did it voluntarily after the Fortis scandal in the late 60s, early 70s. But then after Watergate and 78, Congress passed the Ethics and Government Act requiring these disclosures that went into effect in 81. Lower court judges actually sued so they wouldn't have to file annual financial disclosures because they were thought to it.

They were thought to be too invasive. They lost in the court below. Scotus denied cert in, I think, January of 1981. And then since then, the justices, all nine of them, every single year, have filed an annual financial disclosure report. That is 100% a creation of Congress, the fact that they do it every year. And same thing with the 2400 lower court judges. So this idea that they can't be, you know, the Congress can't bind them to do anything is kind of ridiculous and disproven by their own annual activities with the filing of the disclosures. Okay, yes. So absolutely, they have appeared to acquiesce. They, the lower courts, I think, have stopped contesting that they can be bound and required to file annual financial disclosure reports. The SCOTUS members as well filed these annual reports, although we can talk a little bit about the sometimes. Oh, they'll admit things. Oh, yeah. That's a problem. Yeah, sort of spotty, sort of like practice. But at least they do, I think through their conduct, seem to be acquiescence in the acquiescing, rather, in the applicability of these, you know, mandatory. filing requirements to them. And yet there are, I think not. So Alito told the Wall Street Journal that basically Congress doesn't have any authority to regulate justices of the Supreme Court. But it's also the case, I think, that they have suggested that they are deciding to file these

annual financial disclosure reports, but maybe just as a matter of grace and discretion as opposed to compliance with some binding directive that Congress has the authority to subject. them to. So in 2023, following this wave of I think really blockbuster pieces largely by ProPublica, revealing the degree to which

several justices have been the beneficiaries of this largesse from kind of billionaire friends and benefactors, the justices announced for the first time that they were setting forth a code of conduct for the justices of the Supreme Court, which they said basically just formalized and announced to the public, the

practices the justices already followed, and the filing of the annual financial disclosure reports are sort of on the list, but it almost sort of suggests that the willingness to file these annual reports is something that the justices are deciding to abide by, but only again, because they have decided to do so rather than because Congress has enforced upon them this binding obligation. And so I kind of think that the filing of the annual financial disclosure reports is important, but the thing that the thing. they have said and communicated about why they are filing, in some ways only underscores the problem, which is that they have announced that they are the kind of ultimate arbiters of the ethics rules

that they are going to follow. And that, I think, evince is a fundamental misunderstanding of these core separation of powers principles, which is that every branch is subject to checks from other branches. That's pretty central to the design of the Constitution. And yet, this Supreme Court seems to believe that it alone sort of stands outside of meaningful checks. And maybe it's going to decide to do some things that will promote a modicum of transparency, but, you know, it could decide differently tomorrow if it wanted to. So do you basically agree with that assessment? Yeah. So, yeah, that harkens back to a William Rehnquist authored memo in 1991 when the Ethics Reform Act was coming into effect. And that talked about, okay, there are

these new gift rules that Congress is putting on itself and on the judiciary. We make no statement. on the constitutionality of these new gift rules, but because we're nice guys and gals, we're going to follow them. So that was, that was this memo. You can, we'll link,

I'll link to it on fixacourt.com. I'm sure we have it there. But, but yeah, it was the justice is saying, okay, you know, we have these new gift rules,

we have this disclosure rules. We're going to, we're going to follow them. I mean, the thing is that if they don't file a disclosure, if they lie in the disclosure, the attorney general can bring a civil action against the individual. But typically it has to go through the judicial conference in the judicial conference, which is the policymaking body of the judiciary, is run by

Chief Justice Roberts and as a body runs interference on ethics issues. There's a judge in Georgia that had sex in our chambers and lied about it, and she should be impeached in the judicial conference. Their committee on judicial misconduct could have done something and they didn't. The judicial counsel there didn't do anything. So the infrastructure of the judiciary itself, it's not just the court, it sort of insulates the justices from accountability. And I think what you are implying is that it might come to a head, right? If we have an enforceable ethics mechanism that is passed by a future Congress, if we have a gift ban rule, if we have certain rules about prediction markets or amicus filings or lobbying at the court, what have you, that might end up being decided by a Supreme Court. And what is the Supreme Court going to do?

It doesn't mean I don't think we should try to get convinced our number of Congress to pass new ethics rules for the court. And I have a whole host of them that, you know, we can talk about. But, you know, I do think that that is an important point that. But it's similar. I think it's similar to the conversation you had with Alicia on the, on the term limits context. Like, the Supreme Court might say term limits are unconstitutional, but we still have to try. I mean, we still have to say, like, this is what we want the Supreme Court to look like from a, you know, a length of tenure perspective or an ethics perspective. And if the Supreme Court ultimately turns down that law, I mean, look, in 2022, we passed, we got a law passed, bipartisan law passed that requires all the justices to post their disclosures.

Lojures online and to post their stock transactions online. It's an extension of the Stock Act that was passed for members of Congress 10 years earlier. Alito's posting is stocks. Roberts is posting his stocks. The justices, when they get, you know, they're following this law. So I think, you know, I'm sort of of the mind that when it comes to brass tax, I'm going to be hopeful. And if it ends up coming to a constitutional head and the Supreme Court says, oh, these ethics laws are unconstitutional, then, sure, let's ramp up. But I think we at least have to try. to pass something stronger via legislation rather than acquiesced to this sort of, you know, Rehnquist Alito Thomas view that they can't do anything about us.

Right. They would like they are through these statements trying to communicate, basically back off Congress because maybe anything that you try, we are going to assert the authority to invalidate. But that's, of course, not a reason to move forward because fundamentally they're wrong. Congress does have the authority to regulate them. And if not, we can take away their budget. I mean, this is something that we, at Fix the Court, have started years ago. I think it's catching on now. The Supreme Court now has, I mean, back then it was like $100 million. Now it's closer to $200 or $225. Half of that is for security. I think that's saccharcanked. The justices need to be safe. Like that's no, there's no debate there. But do they need for the

money? Exactly. We can take away the money for their law clerks. We can take the money for their printing and their judicial assistance and their lunches and their electricity or what have you. I'm okay with them keeping electricity. I think security electricity. You know, okay. They get electricity. They get those things. That's fine. But they don't get, yeah. Yeah, I think that the kind of the cudgel of the budget is really important. Okay. So we jumped a little bit ahead to sort of like, right, what how a showdown might look if Congress actually did pass binding ethics rules with teeth that applied to the justices.

So let's step. I want to give you a caveat there, though. Yeah. Because I think it's important because when we're talking about binding ethics rules, too, I think it's also important to remember like the goal of the binding ethics rules are not to make it so Clarence Thomas and Sam. Alito no longer hear cases. Like, I just don't think a world exist where that is possible. I don't think there are 67 senators to impeach and remove. I don't think there's enough cases where recusals could be put into play. I mean, I'm sorry to disappoint that progressives who listen to this podcast, but I don't think that Thomas and Alito are going to leave other than when they

decide to set down in 2027 or 2028. But the ethics, you know, but the ethics, you know, But the ethics, with enforceable ethics, you know, it's just, it's having, you know, what I want to, you know, sort of just put out there is like the fact that there is no inbox to file a complaint against a justice. The fact that there is no one within the court, right? Personnel is policy. They haven't hired any ethics experts since the 2020 code came out, that there's nobody in the court and there should be an inspector general and ethics counsel and ethics investigation counsel and their bills that would do all of this within the court reviewing the justices, behavior to ensure that it's compliant. You know, the fact that there is no one doing that, I mean, I think that, you know, that might not be satisfactory for those of us. And look, I'm, you know, pissed off at the conservative six as much as anybody. But, you know, to have somebody there that's reviewing this so the public understands what these justices are up to and what their foibles and their ethical malfeasance is, I mean,

you know, the fourth of the state does a great job, but we need somebody inside the building reviewing these possible complaints. but we currently don't even have that. So I think it just, it is, when we talk about enforceable ethics, it's both sort of a very high bar because no one's getting impeached and removed on the one hand. But on the other hand, it's a very low bar because it's like, let's at least have somebody in there and some sort of process. So the public feels that we know the ethical framework through which the justices are operating. Strict's scrutiny is brought to you by Quince. You know those pieces in your closet you find yourself wearing on repeat, that sweater that goes with everything, the perfect pair of pants,

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And I know there's some bills out there, but our listeners are not going to be as steeped in the specifics as you are. So talk about some of the specifics. and then maybe to say a little bit more, whether an ethics counsel, an inspector general, both, sort of what it would look like to have some independent or quasi-independent actors inside the judicial branch and maybe inside the Supreme Court specifically that actually enforce these new rules, were they to go into effect? Sure. So I think that's foot in the door, just get in there, talk a little bit about what we need to do to fix things. That, to me, is the gift ban bill. Currently, there's a bill introduced by Congressman Raskin in the House and Senator Lujan, Raskin from Maryland, Lujan from New Mexico and the Senate that would effectively place upon not only the Supreme Court justices, but all 2,400 federal judges, the same gift acceptance rules that members of the other two branches have to follow. And it's a little bit different branch to branch.

I mean, in the executive branch, it's usually $20, but obviously, like, there are a million of monuments right now. So what does that even mean? Congress, it's $50. The reason it's not $0 is you don't want to get in trouble if you like take a pen away from a constituent event or like get a free Starbucks coffee when someone's passing it down in line or whatever. So it would be a $50 limit for gifts for a single gift and then $100 for the year. So to me, that is sort of like the very basic. We should be able to get a bipartisan consensus on this. And to be clear, there is not such a ban in place when it comes to federal judges at the moment. That is really striking. Yeah, and we've, Fixer Court has identified something like more than, I think it was 515 gifts that the justices have accepted over the last 20 years. And that's ridiculous. I mean, some of them are, you know, Justice Sotomayor got a pin from the University of Vermont that's, you know, five bucks or whatever. Justice Gorsuch got a silver julep cup from one of the schools in Kentucky because they're all about their mint jolips there. That was like worth 50 bucks.

But some of these are flights on a private plane across the... the world worth tens or even hundreds of thousands of dollars or free yacht trips around the world worth tens of hundreds of thousands of dollars. The justices all make $300,000 a year. None of them are poor. They can all afford their vacations. They can all afford a julep cup if they want one. And so to me, just requiring the justice of the same rules as members of Congress on the gift makes a ton of sense. And so that's sort of number one. And I think number two would be creating sort of an enforceable ethics framework that is very similar to what we have in the lower courts, right? So I filed a complaint against Judge Emil Bovet on the Third Circuit. He attended a Trump

rally. I couldn't find any history of sitting federal judges attending a political rally. I filed a complaint against him. That's being reviewed currently. Can't really talk much more about it because there's confidentiality rules around it, but I know that is being reviewed by a panel of judges somewhere in America. Okay. So you can do that. So Boewe sits on the Third Circuit. It turns out you as a concerned member of the public, you know, a watchdog, or even just a citizen who's interested. Yeah, I live in Virginia. I've never met the guy. But, you know, he's a mechanism for doing that for initiating a complaint when you think that some improper conduct has occurred. There is just no such process when it comes to the Supreme Court justices. Exactly. So that would be number two. So it would

just be creating some sort of mechanism, whether it's reviewed by an inspector general or some sort of internal ethics office. The Supreme Court has an office of legal counsel, you know, kind of as useful maybe the DOJ LLC at the moment, for those of you who know you know, but they have an OLC. I'll say, actually, it's very good lawyers in that office, and they just have a remit or mandate that is not, does not encompass the kinds of sort of, you know, ethics enforcement. I didn't mean to dis you. No, it's just, it is a small office and it and it has kind of a time honored function, but that does not encompass, at least, you know, when I was familiar with it. Yeah. this kind of evaluation of the ethical propriety of certain courses of conduct that justice might

want to take or gifts they might want to receive or things like that. And I think that it would be difficult to expand their mandate to include this kind of work. I think much more realistic people. Oh, yeah, we need to people. We need to be creating something new, a new entity and populated with new people. Yeah. Exactly. So I think I think that's sort of number two is figuring out what that is. I think there's room for both an internal ethics office at the court and then sort of a branch-wide Judiciary Inspector General. Chuck Grassley had a bill to do that for about a dozen years. He's no longer on it. Now it's Dick Blumenthal. So it was a Republican bill. Now it's a Democratic bill. It's

like 99% the same bill. But over the last two decades, Republicans and Democrats alike have seen the value of having an inspector general in the judiciary. There's an inspector general in all the agencies in the executive branch. And then Congress has its own internal. There's no inspector general per se, but they have internal ethics bodies, the Senate Ethics Committee. the House Ethics Committee and other ombudsman. So something like that in the judiciary, that would be, you know, we'd be funded through the judiciary. It'd be Article 3.

I think you have to appoint it by, I think you have to have Chief Justice Roberts appointed. I don't think you could have a president appointing an inspector general for the judiciary. That'd get a little fishy from separation of powers issues. But have Roberts in point, you know, I don't know, Tom Griffith, Mike McConnell, Greg Costa, Paul Watford, you know, former judge who's hanging out, doing their thing. Yeah, it's hard to see what constitutional objection you could possibly formulate to Congress creating an office. I mean, Congress creates, you know, all aspects of the lower federal courts and has passed a lot of laws regulating different aspects of the Supreme Court, even though the Supreme Court itself is created by the Constitution. The specifics, like the details are filled in by Congress.

And so this would be that. And then giving the Chief Justice the authority to appoint, say, yeah, the Inspector General, I think would sidestep any possible constitutional objection. And then so in terms of what such an office would do, so we have, you know, potentially enforcing this gift ban, advising on whatever, wherever the line is, because I think it's right that it's pretty customary to say certain kinds of, you know, de minimis value items that are exchanged all the time when you're a public official and you talk to groups and you and you visit locations, people do give you pens and plaques and T-shirts. And there's nothing really objectionable about that. And so you figure out where the line is. Yeah, but above that, there's no conceivable public-facing reason to give the justices the authority to take high-value items and all kinds of reasons to prohibit it. And so figuring out how to enforce that would be one piece of it. What about – we haven't really talked about recusals.

And that's something that I'd be curious to hear a little bit about. So under the plain terms, I think, of 28 U.S. C. Section 455, federal judges and justices are required to recuse themselves or disqualify themselves, quote, in any pretexts. proceeding in which their impartiality might reasonably be questioned. I also think the commentary to the 2023 code suggests that there might be some question about whether that statute clearly applies to the justices. There's like this language in the commentary that's attached to the code about how sometimes the duty to sit or the rule of necessity like you need to have a quorum of Supreme Court justices. And so this kind of disqualification directive in the statute has to be understood in light of this kind of other principle that the Supreme Court is unique because you need the

justices, all this is it. Now, you actually only need six to make a quorum, but that disqualification is problematic on the Supreme Court in a way that it's not in the lower federal courts, at least in the view of, I think, this current Supreme Court. Anyway, so sorry, that's kind of a long wind-up, but I guess sort of would this potential Inspector General or other kind of enforcement authority also advise on or issue kind of binding guidance to the justices on recusal or just how would recusal work. Yeah, I think binding guidance would be tough. I think the justices, the best that we've come up with, those of us who have thought about it in terms of legislative language, is if you are a litigant and you want a justice to recuse one of the nine, you can file a recusal motion,

and then the eight other justices would decide the merits of that recusal motion, and then that justice should follow the recommendation of the eight other justices. The problem is that we, all of us, all humans, are terrible at understanding the levels of our own bias. And so the idea that if I file a recusal motion against Justice Gorsuch to recuse in some case, I don't even know what, you know, he's currently, and I'm a litigant, he's the only person who can decide that motion. And that is completely ridiculous. So like I said, you know, the best is take the one, pass it off to the other eight. Are the other eight going to run interference for that one? Maybe. But I think it's worth having the other justices,

say, okay, this is why I think that, you know, Justice Corsuch in this case should or should not participate in that case. And so I think, and there are ways to expand the recusal rules. And I think you're right. If you look at the Code of Conduct and you look at some Supreme Court precedent, it's, you know, the federal law says impartiality reasonably questioned, you have to recuse, shall, you have to recuse. And you look at the Supreme Court, the jurisprudence, the common law, it's like, well, actually, if it's an unbiased person who knows all the facts of the case, who understands the law. It's like they're adding all these stipulations that are not part of federal law.

So I think, you know, A, well, getting rid of the stipulation is theoretically possible in statute. Number one, number two, expanding the recusal law to say, okay, you know, if you're a litigant and you've donated money to the, and for the confirmation, right, there was a case, AFPF versus Bonta, an AFP, which is the sister organization of AFPF, donated a million dollars to get Barrett and Kavanaugh on the court. And they didn't recuse an AFPF versus Bonta. And I thought that was kind of ridiculous. You know, a million dollars is not like, you know, here's three dollars to support somebody, you know, whatever. Like, it's, that was a, that was a huge amount of money to get those two justices confirmed. And then when their sister organization had this

big case, First Amendment case before SCOTUS, all nine justices heard that case. So I thought that was a little ridiculous. So it's also ways to include. And lo and behold, I think ruled for the organization with, oh, of course. Of course. Of course they did. The regulation that they don't even need to, yeah, that they didn't like. So I think there's ways to expand it as, you know, spousal jobs. I think, that there's a lot of concern about, you know, Chief Justice Roberts's wife's job because she's a legal recruiter. I think that's overblown. But I think there is definitely concern about what Ginny Thomas was doing in January 6th. And if she had sort of a financial motivation to try to stop the certification of the 2020 election, we need to know about it. And Justice Thomas should recuse. So there's ways to,

you know, sort of at the margins expand the recusal law. If you've given a gift to the justice in the path, you should be required to recuse up to a certain point in time. So I definitely think there's ways to improve it and make it clear, but I think the larger, and this is actually just to mention Senator Murphy just put out a bill. It's called the Supreme Court Ethics Act. He's put out a version of this every Congress since 2011, so he's not, he's been on this for a while. And his language was the justices shall write a code of conduct that is at least as strict as that which applies to the lower court. So the fact that the justices in their 2023 code wrote something that was not only non-enforceable, but not even as strict as their lower court compadres, was

kind of ridiculous. Yeah. Yeah. I mean, I find myself nervous about a lot of these legislative proposals that seem so cautious about doing anything that appears to direct vis-a-vis the justices and just pans them the authority to do everything. And I sort of worry a little bit, but I understand wanting to respect and be mindful of constitutional lines, but I think the over deterrence that I think we are seeing that the Supreme Court has sort of saber-rattled. And so everyone says, well, we're going to be really careful not to over-regulate because you might strike down what we do. is also a real problem, but certainly whatever the source, whether it's Congress legislating directly or Congress telling the justices to promulgate something, it is crazy that this incredibly powerful body shouldn't be subject to ethics rules that are at least as strict as those that are applicable to the lower federal courts. It's really wild. So let me ask you to follow up on something that you said a couple of minutes ago. So you mentioned that Grassley, of course, is a Republican senator from Iowa, for many years introduced a version of the bill that would have created an inspector general.

that is now kind of a democratic priority. But I think the sort of deeper point is that for a long time, and you think correctly, this has been a sort of nonpartisan and non-ideological issue, injecting some degree of ethics rules into the Supreme Court. And so can you talk a little bit about this? I've heard you talk about this before. But can you just like make the case that Supreme Court reform and ethics reform in particular should be a nonpartisan and non-ideological issue? Sure. So first I'm going to make the shitty case. and then I'll make the real case.

So the shitty case is conservatives, you're winning at the court. You should want a court that is above board ethically, that people aren't doubting their ethical forbearance and their decision to come out this way because there is a sense in the public that they are acting unethical. So the justices should be doing as much as they can ethically to prop. And you know, you still have a six three court at the end of the day, right? If you have all these ethical rules, the math is the math.

I mean, there are other groups that want to, you know, I'm happy to talk about jurisdictional. stripping or expansion or whatever, but that's not really what I do. I do mostly ethics in about half, it's actually half lower court, half SCOTUS, but the point is that, you know, if you're a conservative, you should want the court to be looking better than it is now and putting upon themselves ethical frameworks because you are winning, right? People are doubting why you are winning because they think that you're doing it via underhanded unethical means. So that's sort of a... I would disparage it. That is a case. If you're trying to build like a real

big tent. And I think you're right, it's harder to build like a really broad constituency for some of these other kinds of reforms. But ethics, I think, is the one that has the most realistic chance of actually attracting sort of broad support. And I think, yeah, I mean, maybe for very different, it's like the Supreme Court's sort of very low approval ratings right now. And I talk to Jamel Bowie about this. You know, a lot of it is liberals were really unhappy, and I think rightly so with the court. But then there's also this conservative contingent that is mad the court hasn't been more MAGA. And so anyway, that's together. You get like a 33% approval rating.

Anyway, so I actually do think there is a world you can imagine where Supreme Court ethics reform actually gets across a legislative finish line because there are people who have very different reasons to be unhappy with SCOTA. So anyway, but so the conservative case is that you want a court that actually is not going to be dogged by these accusations or suspicions that it's acting for improper motives, that it's doing all these conservative things and people sort of have to accept those. So you like the court, you should support ethics reform. What's the other case?

The other case is that the Supreme Court is not different from any other government institution. Just because it's mentioned in Article III of the Constitution and we have this like reverence for it and like we even have reverence for individual justices, which is so weird. I mean, like there's no such thing as the Scalia seat or the Ginsburg seat or anyone's seat. It's just people who are supposedly doing supposed to be doing a job and then getting out. out and, you know, writing circuit after they retire like Justice O'Connor did and even Justice Breyer is doing as well. But anytime you have an institution with that much power, you want them to sort of, you know, follow the same rules as everyone else. And I think we've sort of, you know, people's, I guess, okay, so I'll say it this way. People think, oh, the Supreme Court is a different.

They're not political. They're above us all. We have to have a Supreme Court because they decide if two different circuits or whatever disagree or if there's a tough question of politics or constitutional law. Yes, but at the same time, to me, it's the substance, right? It's what they are deciding and how much power they have that requires them to have this strong ethical framework. Having Congress passed laws that make ethics happen doesn't make the court political. If anything, it tamps down the politicization of the court. they've already decided that gerrymandering isn't a thing, that the Voting Rights Act isn't a thing that they're going to stick their noses in basically every federal election that we ever have. And so because of that, there is sort of a floor upon which they should be operating.

And they are not currently doing that. And that, to me, is a big opportunity no matter who you support, no matter, you know, left, right, center. And so, you know, in the end, you know, it should be something that that the left and right can agree on. I have an op-ed in Skodis blog about why that is, and you can read that or whatever if you're interested. But overall, and historically, because it hasn't been a partisan issue, you know, I'm hoping that, you know, maybe after Thomas and Alito retire, it can become a little bit more bipartisan because there's such lightning rods these days. But in the long run, you know, my hope in creating a nonpartisan nonprofit is that we can sort of return to first principles, which is all three government branches should be equally ethical all the time. I worry a little bit about having to wait for Alito and Thomas to exit the stage to do something. I mean, this feels like—

I think they'll be gone in the next 18 months, but, you know. That's fascinating. Okay. Well, and then I suppose the legislative agenda sort of would kind of align in terms of timing. But I guess, you know, I'll have to have you back in 18 months and sort of. and see where things stand. Maybe just one or two more questions. So you've said you mostly do focus on ethics reform,

but if you were going to sort of think more broadly than just ethics reform, are there things that you think should be done to change SCOTUS beyond the stuff that we've been talking about? You're going to make me talk about term limits, aren't you? Okay, here we go. So look, I think I at first, so when Fist Accord started in 2014,

we did term limits wasn't one of the fixes because it was so entrenched within the conservative movement and I was trying to create a nonpartisan nonprofit. So if I had term limits, everyone's going to be like, oh, you're conservative. Then as sort of we moved into 2015, I started talking about term limits. And all my liberal friends were like, why are you trying to reduce the 10 years of Hillary's justices? And I'm like, okay, well, and you obviously, everyone knows how 2016 turned out. So regardless, we decided in 2015 to add term limits. I think that, you know, know, having justices. And I was really sort of convinced by this law review article by David Garrow, who's a Obama biographer and Pulitzer Prize winning historian, basically showing that in

every generation, a justice has lost their mental acuity before they retired. So even someone, you know, everyone knows the William O. Douglas example, but even Brennan and Marshall, they were examples of them sort of slipping towards the end. Ginsberg and Scalia were definitely not as sharp towards the end as they were earlier in their career. So I think the idea that you have justices who serve for a time and not for all time, which in this case is 30 or 35 years, is something that we need to institute. I think the only way to do it, however, is to have them be prospective. So in other words, you'd add a new justice. That justice would be serving for 18 years, for life on the federal judiciary, 18 years of which would be on the Supreme Court,

and then they'd rotate off and serve on, you know, the regional court in Boston, Chicago, New Orleans, in Cincinnati wherever or retire or whatever. They can do whatever they want to do. I don't think you can reduce the tenure of the current justices. So what this means in practice is that if there's a Democratic president in 2029 and term limits is instituted, that justice might be the 10th justice for a time if the nine who are sitting in 2029 don't want to leave. So, you know, it's not going to be a perfect nine justice, 18 year rotation for maybe a decade

or two. So there might be 10 justices, 11 justices. I'm fine with that. and I'd polled Republicans, Democrats, and independents about this a few years ago, I think 2021, and they were all fine with that better than the current system of 40-year, you know, we're getting close to 35, 40-year tenures. So, you know, I don't think you can reduce the tenures of the current nine, but I think that if you have justices who have prospective term limits, you would, you know, take a little while, but you'd have that perfect nine-justice

18-year term limit rotation. And there's a bill in Congress. It's HR 1074 that would do that. and, you know, hoping it'll continue to be introduced in every Congress until one day it's enacted into law. Yeah. I really like, and I had sort of a similar conversation with Alicia Bannon about coming to the place of supporting term limits. I think that different people have had different trajectories around them. And mine was a little bit different. It sounds like yours and Alicia's. But it is interesting that people with very different kind of priors have over the years, like with enough thought and also given the trajectory that the court has been on. come sometimes sort of unwillingly, but come to believe that actually some version of term limits and, yeah, maybe paired with either deliberate or just kind of functional court expansion as part of

the implementation of the term limits actually is really, really important and actually kind of goes in some ways hand in glove with this question of ethics reform. Right now, enormous power, service for life, few meaningful constraints. And also like, you know, an unamendent. Endable Constitution. This is a truly intolerable state of affairs, and it's, I think, going to require a multi-prong and multi-front and maybe multi-year effort to actually address it. But all of it, I think, is necessary to get to a place of a healthy, functioning Supreme Court consistent with our constitutional design, because we are very, very far from that right now. Okay, Gabe, if people want to learn more about ethics reform and want to hear more from you and about Fix the Court, where should they go to do that? Sure, we're at FixtheCourt.com. I've FixTheCourt on your favorite or least favorite social media platform of choice. I'm Gabe at FixtheCourt.com and we have staff monitoring the info at Fix the Court and all every other combination permutation thereof.

But yeah, I would love to hear from you. I mean, I think that, you know, people talk about, you know, the big tent in politics, this and that. I think there really needs to be a big tent in court reform. And if you're just a regular person or congressional staff or a, you know, a member of the judiciary and you have a question, like I probably thought about it and I may not support it. I may have. You know, we may, we may not. But I think it's worth having that conversation with people who have sort of been thinking about this issue for a long time. And then, you know, we can go from there and see what makes the most sense to try to push legislatively. But, you know, a lot of these proposals, especially when you talk about Congress, they're going to need to pass by wide margins, right? I don't think that future Congresses are going to spend three weeks debating a Supreme Court ethics regime. It's going to have to pass with 60 votes, 70 votes, 100 votes, because that's just the way Congress works nowadays. And so, you know, I think the way that we get to consensus is sort of, you know, taking down the temperature about individual justices or even individual rulings. I think there's definitely a place for that outside the ethics conversation and figuring out ways that, you know, we can expand the tent and expand the view of what smart Supreme.

where ethics reform looks like and how we're doing it not to necessarily hurt or help one party or one political view or another, but how we can make and create a Supreme Court that we all feel proud of and that we all trust that their hearts and minds and ethical mores are in the right place. All right. Well, it sounds like sort of a fantasy land right now, but I do think it feels like a place that we just have to sort of start to try to figure out how to move toward. Thank you so much, Gabriel Roth from Fix the Court for joining me today. Really appreciate the time and your relentless focus on this issue. you. Thank you.

Strict scrutiny is a Crooked Media production. Our show is produced by Melody Rowl and Michael Goldsmith. Music by Eddie Cooper. Our team includes Matt DeGroote, Ben Hethko, Johanah Case, Kenny Moffitt, Adam Lippert, and Eric Schute. Our production staff is proudly unionized with the Writers Guild of America East.