Supreme Court of the United States -- Statement of the Court- The Code of Conduct

"The undersigned Justices are promulgating this Code of Conduct to set out succinctly and gather in one place the ethics rules and principles that guide the conduct of the Members of the Court. For the most part these rules and principles are not new: The Court has long had the equivalent of common law ethics rules, that is, a body of rules derived from a variety of sources, including statutory provisions, the code that applies to other members of the federal judiciary, ethics advisory opinions issued by the Judicial Conference Committee on Codes of Conduct, and historic practice. The absence of a Code, however, has led in recent years to the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules. To dispel this misunderstanding, we are issuing this Code, which largely represents a codification of principles that we have long regarded as governing our conduct.
November 13, 2023.."
Supreme Court - Code of Conduct 

State Laws Restricting or Prohibiting Abortion

"The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade, providing states with greater discretion to restrict abortion access, including by limiting abortion prior to fetal viability.1 This report provides an overview of existing or recently passed state laws prohibiting or limiting abortion prior to 24 weeks’ gestational age, which for many years was considered the point of viability, though medical advancements may have moved that point earlier. 2 The report identifies “trigger laws” that generally prohibit abortion that went into effect, either automatically or following action by a state official, when the Supreme Court overturned Roe v. Wade. It also includes new laws passed since June 24, 2022, when the Supreme Court overturned Roe v. Wade. This report does not address any exceptions to these restrictions, such as in the case of a medical emergency, rape or incest, or restrictions to specific methods of abortion, such as medication abortion. Links to the full text of statutes listed in this report are available through the Law Librarians’ Society of Washington, DC, Legislative Sourcebook.3

Some states appear multiple times in the tables. In some instances, laws may have been enjoined or been ruled unconstitutional, but have not been repealed and removed from state codes. For example, some historical laws that were ruled unconstitutional under Roe were never repealed.4 In some cases, multiple, overlapping laws may have been intentionally or unintentionally passed by state legislatures.5 Additionally, some recently repealed statutes have been included for informational purposes.

As mentioned above, some of the laws below may not currently be in effect due to court injunctions. Some prosecutors have also indicated they intend to use their discretion whether to enforce the laws at the local level.."
State abortion laws 

Supreme Court Narrows Federal Jurisdiction Under Clean Water Act

"On May 25, 2023, the Supreme Court decided Sackett v. EPA, a case with significant implications for the scope of federal jurisdiction under the Clean Water Act (CWA). While the Court unanimously agreed that the lower court applied the wrong standard for determining when wetlands are considered “waters of the United States” (WOTUS) based on their adjacency to other jurisdictional waters, it split 5-4 on the appropriate test.

The majority formally adopted the approach taken by a four-Justice plurality in the 2006 case Rapanos v.United States. Under the majority’s test, “waters” are limited to relatively permanent bodies of water connected to traditional navigable waters and to wetlands that are “waters of the United States” in their own right by virtue of a continuous surface connection to other jurisdictional waters so that there is no clear demarcation between the bodies. Wetlands that are neighboring covered waters but are separated by natural or artificial barriers are excluded.

The CWA prohibits discharging certain pollutants into navigable waters, defined as “the waters of the United States, including the territorial seas” without a permit, but the statute does not define WOTUS. The definition of WOTUS is important because it determines which waters are subject to federal government regulations and protections, including CWA permitting programs. In January 2023, the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA)—the two agencies tasked with implementing the CWA—issued a final rule redefining WOTUS. (See this report for an in-depth discussion of the rule and the previous regulations promulgated to define the term.) The Court’s ruling in Sackett construes the reach of the CWA more narrowly than the new or previous regulatory interpretations or the approach adopted by the courts of appeals since Rapanos. While the Sackett decision does not directly address the merits of the new rule, its rejection of several elements included in the rule casts doubt on the current regulatory framework. It also evinces the Court’s decreasing reliance on deferential modes of statutory construction as well as its increasing insistence on clear congressional authorization for agency action..."
Supreme Court and Clean Water Act 

Oyez! Oyez! Oyez! Sound Recordings of the Supreme Court of the United States Now Fully Digitized

"The Moving Image and Sound Branch is pleased to announce that the sound recordings of RG 267: Records of the Supreme Court of the United States have been fully digitized and are available for listening and download through the National Archives Catalog. The audio recordings in Record Group 267 are organized into three series,  Sound Recordings of Oral Arguments – Black Series, October 1955 – December 1972, Sound Recordings of Oral Arguments – Red Series, December 1972 – June 27, 2005, and Sound Recordings of Oral Arguments – Gold Series, October 3, 2005 – May 31, 2020.

The Supreme Court of the United States did not start recording oral arguments until the 1955 October term. Cases heard prior to that date can sometimes have a related transcript, but they were not captured consistently and do not exist for all cases. If they exist, pre-1955 transcripts can be found in Appellate Jurisdiction Case Files, 1792-2017. Starting in October 1955, the Court captured all oral arguments for cases heard each term, as well as special proceedings such as memorial services and admissions to the bar. The recordings from these proceedings are organized chronologically by the date of the arguments. The judgments of the Court, which are called opinions, were not regularly recorded until the mid-1980s. If the opinion does exist, it can be found on the tape corresponding to the date the opinion was announced. 

Some well-known cases you can now listen to in the National Archives Catalog include Loving v. Virginia, Obergefell v. Hodges, Roe v. Wade, and Republic of Austria v. Altmann..."
Supreme Court Recordings 

Financial Disclosure and the Supreme Court

"The Ethics in Government Act of 1978 (EIGA) established financial disclosure reporting requirements for many high-level government officials and employees, including the Chief Justice of the United States and the Associate Justices of the Supreme Court. Supreme Court Justices must file publicly available financial disclosure statements that report certain financial transactions. A recent article detailing undisclosed trips by an Associate Justice has increased interest in Supreme Court ethics and the interpretation of the EIGA’s reporting requirements.

This Legal Sidebar provides an overview of financial disclosure requirements under the EIGA and how they apply to the judicial branch. It also examines recent statutory and regulatory updates to judicial branch financial disclosure requirements. The Sidebar concludes with a discussion of potential congressional action on Supreme Court ethics and highlights legal considerations regarding Congress’s authority to regulate the Supreme Court.

Federal Financial Disclosure Laws

The EIGA was enacted, in part, to “preserve and promote the integrity of public officials and institutions.” To help achieve this goal, the EIGA requires, among other things, that covered employees file annual financial disclosure statements reporting:
 income from any source (other than from current employment by the federal government) including honoraria; payments made to charity in lieu of honoraria; and any dividends, rents, interest, and capital gains that exceed $200;
 gifts and reimbursements (although filers do not have to report gifts received from relatives or food, lodging, or entertainment “received as personal hospitality of an individual”);
 interests in property;
 liabilities exceeding $10,000 owed to any creditor other than a close family member (with certain exceptions such as mortgages for personal residences);
 transactions that exceed $1,000 in real property (other than a personal residence) and securities;
 positions with outside entities and major sources of compensation;
 agreements or arrangements relating to other employment; and
 qualified blind trusts.

Covered filers must also report certain financial transactions of their spouses and dependent children. These financial disclosure reports assist in identifying real or perceived conflicts of interest held by government officials.

Financial disclosure reports are submitted annually to each individual’s designated agency ethics official, and reports must be made available to the public (unless the covered individual qualifies as a confidential filer). Additionally, under the Stop Trading on Congressional Knowledge (STOCK) Act of 2012, certain filers must also submit periodic transaction reports (PTRs). Covered individuals must file PTRs when they, their spouses, or their dependent children make a sale or exchange of a security that exceeds $1,000 within 45 days of the transaction. The PTR requirements do not apply to a “widely held investment fund”—such as a mutual fund—so long as the fund is publicly traded, the assets of the fund are widely diversified, and the reporting individual does not exercise control over the fund..."
Supreme Court and Financial Disclosure  

SUPREME COURT OF THE UNITED STATES STATEMENT OF THE COURT CONCERNING THE LEAK INVESTIGATION

"In May 2022, this Court suffered one of the worst breaches of trust in its history: the leak of a draft opinion. The leak was no mere misguided attempt at protest. It was a grave assault on the judicial process. To meet our obligations as judges, we accept submissions from parties and amici, we engage advocates at oral argument, and we publish explanations of our final decisions. All of this we do in the open. Along the way, though, it is essential that we deliberate with one another candidly and in confidence. That phase of the judicial process affords us an opportunity to hone initial thoughts, reconsider views, persuade one another, and work collaboratively to strengthen our collective judgment. It is no exaggeration to say that the integrity of judicial proceedings depends on the inviolability of internal deliberations.

For these reasons and others, the Court immediately and unanimously agreed that the extraordinary betrayal of trust that took place last May warranted a thorough investigation. The Chief Justice assigned the task to the Marshal of the Supreme Court and her staff. After months of diligent analysis of forensic evidence and interviews of almost 100 employees, the Marshal’s team determined that no further investigation was warranted with respect to many of the “82 employees [who] had access to electronic or hard copies of the draft opinion.” Marshal’s Report of Findings & Recommendations 11 (Jan. 19, 2023). In following up on all available leads, however, the Marshal’s team performed additional forensic analysis and conducted multiple follow-up interviews of certain employees. But the team has to date been unable to identify a person a preponderance of the evidence. Id., at 17. A public version of the Marshal’s report is attached.."
Supreme Court Leak Investigation 

Supreme Court Oral Arguments

"The Court will hear all scheduled oral arguments for the upcoming term in the Courtroom. Seating for the oral argument sessions will be provided to the public, members of the Supreme Court bar, and press, and Courtroom bar admissions will resume. Masking in the Courtroom for oral arguments will be optional. The Court will provide a live audio feed of all scheduled oral arguments for the upcoming term. A link to the live audio feed will be available on the homepage of the Court's website. The oral argument audio and a transcript of the oral arguments will be posted on the Court's website following oral argument each day.

The building will otherwise be closed to the public until further notice..."
Supreme Court 

The Political Question Doctrine: Political Process, Elections, and Gerrymandering (Part 6)

"This Legal Sidebar is the sixth in a six-part series that discusses the Supreme Court’s political question doctrine, which instructs that federal courts should forbear from resolving questions when doing so would require the judiciary to make policy decisions, exercise discretion beyond its competency, or encroach on powers the Constitution vests in the legislative or executive branches. By limiting the range of cases federal courts can consider, the political question doctrine is intended to maintain the separation of powers and recognize the roles of the legislative and executive branches in interpreting the Constitution. Understanding the political question doctrine may assist Members of Congress in recognizing when actions of Congress or the executive branch would not be subject to judicial review. For additional background on this topic and citations to relevant sources, please see the Constitution of the UnitedStates, Analysis and Interpretation.

The Court in the modern era has applied the political question doctrine to some aspects of legislative regulation of elections, particularly in the area of partisan gerrymandering. Partisan gerrymandering is “the practice of dividing a geographic area into electoral districts, often of highly irregular shape, to give one political party an unfair advantage by diluting the opposition’s voting strength.” Government officials seeking to draw legislative districts to affect election results may adopt several different tactics. For instance, they may create districts containing different numbers of voters, effectively diluting the votes of individuals in more populous districts. In the alternative, legislators may create districts that contain equal numbers of voters but where boundaries are drawn to manipulate the concentration of voters in each district based on characteristics such as voters’ race or their political affiliation. The Supreme Court has held that equal protection challenges to race-based gerrymandering and one-person-one-vote claims based on unequal districts are justiciable. However, for decades the Court was unable to agree on an approach to challenges to partisan gerrymandering.

Unlike one-person-one-vote cases, a partisan gerrymandering case typically involves a voter in a district that is not malapportioned based on population but rather has been drawn to disadvantage one political party. In the words of the Supreme Court, in a political gerrymander, voters affiliated with a disfavored party are either (1) “packed” into a few districts—in effect conceding those districts by large margins and “wasting” votes that could help the disfavored party compete in other areas—or (2) “cracked” into small groups and spread across multiple districts so that they cannot achieve a majority in any one district. In these circumstances, plaintiffs cannot argue that their votes are inherently worth less than that of any other voter—rather, they must argue that the creation of a district that disfavors a particular political party violates the Constitution for other reasons.."
Supreme Court Political Doctrine (Pt. 6) 

The Political Question Doctrine: Congressional Governance and Impeachment as Political Questions (Part 5)

"This Legal Sidebar is the fifth in a six-part series that discusses the Supreme Court’s political question doctrine, which instructs that federal courts should forbear from resolving questions when doing so would require the judiciary to make policy decisions, exercise discretion beyond its competency, or encroach on powers the Constitution vests in the legislative or executive branches. By limiting the range of cases federal courts can consider, the political question doctrine is intended to maintain the separation of powers and recognize the roles of the legislative and executive branches in interpreting the Constitution. Understanding the political question doctrine may assist Members of Congress in recognizing when actions of Congress or the executive branch would not be subject to judicial review. For additional background on this topic and citations to relevant sources, please see the Constitution of the UnitedStates, Analysis and Interpretation.

The Supreme Court has applied the political question doctrine to cases involving the internal governance of Congress, though recent decisions have construed the doctrine narrowly in this context. In the preBaker case Marshall Field & Co. v. Clark, plaintiffs challenging a tariff law contended that the law was invalid because a section of the bill passed by Congress was omitted from the final version of the law signed by the President. The Court concluded that it could not adjudicate this issue. Because of the “respect due to a co-ordinate branch of the government,” the Court had to take as “conclusive” the fact that the act was attested by the signatures of the presiding officers of the houses of Congress and approved by the President. Baker explained that Clark signified the need for “respect” to coequal branches and for “finality and certainty” about statutes. A few cases since Baker have added color to the concept of “respect” in this context.

For example, in Powell v. McCormack, an individual elected to the House of Representatives challenged a House resolution excluding him from his seat in Congress. Although the Member-elect met the age and citizenship requirements in Article I, Section 2, the House found that he had misrepresented travel expenses and made illegal salary payments to his wife. The defendants—Members and officers of the House—argued that the text of the Constitution, specifically Article I, Section 5, gave Congress exclusive authority to judge the qualifications of its own Members, so Congress could determine that the Member was unqualified. The Supreme Court held that the case could go forward and that the Member-elect was entitled to relief. On the question of justiciability, the Court explained that, despite the text the defendants cited from Article I, Section 5, there was no “textually demonstrable” commitment of this constitutional question to another branch. At most, the Constitution gave Congress the power to judge the “qualifications expressly set forth in the Constitution,” not the power to set new qualifications. Nor did the Court conclude that “the respect due co-ordinate branches” barred hearing the case, even though it was interpreting the Constitution “in a manner at variance with the construction given the document by another branch.” In the view of the Powell Court, constitutional conflicts with other branches were inevitable under the constitutional system and were no excuse for avoiding a case where there existed “judicially manageable standards” sufficient to judge the question..."
Supreme Court Political Doctrine (part 5) 

The Political Question Doctrine: Foreign Affairs as a Political Question (Part 4)

"This Legal Sidebar is the fourth in a six-part series that discusses the Supreme Court’s political question doctrine, which instructs that federal courts should forbear from resolving questions when doing so would require the judiciary to make policy decisions, exercise discretion beyond its competency, or encroach on powers the Constitution vests in the legislative or executive branches. By limiting the range of cases federal courts can consider, the political question doctrine is intended to maintain the separation of powers and recognize the roles of the legislative and executive branches in interpreting the Constitution. Understanding the political question doctrine may assist Members of Congress in recognizing when actions of Congress or the executive branch would not be subject to judicial review. For additional background on this topic and citations to relevant sources, please see the Constitution of the UnitedStates, Analysis and Interpretation.

One area where the political question doctrine has particular importance is in foreign affairs. In 1918, the Court wrote, “The conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative—‘the political’—departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.” However, despite that sweeping statement, as the Court recognized in Baker, not “every case or controversy which touches foreign relations lies beyond judicial cognizance;” rather, the Court analyzes each question on a case-by-case basis. For example, many pre-Baker cases concluded that the judiciary was bound to defer to the political branches on certain questions involving the validity of treaties or the recognition of foreign governments. The Baker court characterized those cases as ones in which “resolution of such issues frequently turn on standards that defy judicial application, . . . involve the exercise of a discretion demonstrably committed to the executive or legislature . . . [or] uniquely demand single-voiced statement of the Government’s views.”

The first major post-Baker case to consider these principles was the 1973 case Gilligan v. Morgan. In Gilligan, the Supreme Court declined to consider a claim that defective training of the Ohio National Guard had led to the violence that occurred at Kent State University three years earlier. The plaintiffs sought a “judicial evaluation of the appropriateness of the ‘training, weaponry and orders’ of the Ohio National Guard” and “continuing judicial surveillance” over the Guard to ensure compliance with any court-approved requirements. Although the case did not involve foreign policy, it raised related considerations. Recognizing that the case involved “[t]he complex, subtle, and professional decisions as to the composition, training, equipping and control of a military force,” the Court gave two reasons why the political question doctrine applied. First, Article I, Section 8, of the Constitution gives the authority for “organizing, arming, and disciplining the Militia” to Congress. Second, in concert with the explicit textual commitment of military supervision to a branch outside the judiciary, the Court recognized that the judicial branch was uniquely poorly suited to supervise this activity: “[I]t is difficult to conceive of an area of governmental activity in which the courts have less competence.” Following what Baker called the “impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion,” the Court concluded that the case involved a political question.."
Supreme Court Political Doctrine (Part 4) 

The Political Question Doctrine: The Doctrine in the Modern Era (Part 3)

"This Legal Sidebar is the third in a six-part series that discusses the Supreme Court’s political question doctrine, which instructs that federal courts should forbear from resolving questions when doing so would require the judiciary to make policy decisions, exercise discretion beyond its competency, or encroach on powers the Constitution vests in the legislative or executive branches. By limiting the range of cases federal courts can consider, the political question doctrine is intended to maintain the separation of powers and recognize the roles of the legislative and executive branches in interpreting the Constitution. Understanding the political question doctrine may assist Members of Congress in recognizing when actions of Congress or the executive branch would not be subject to judicial review. For additional background on this topic and citations to relevant sources, please see the Constitution of the UnitedStates, Analysis and Interpretation.

The Supreme Court began to develop its modern application of the political question doctrine in the 1939 case Coleman v. Miller. In Coleman, the Court addressed the Kansas legislature’s recent approval of the proposed Child Labor Amendment to the Constitution, which had been submitted to the states for ratification 13 years prior. Members of the Kansas legislature who had voted against the amendment petitioned for a writ of mandamus, seeking to revoke the approval. They raised certain procedural challenges to the ratification and argued that the passage of time had rendered Kansas’s approval of the amendment invalid. The opinion of the Court, authored by Chief Justice Charles Evans Hughes, affirmed an opinion from the Supreme Court of Kansas denying the plaintiffs' petition. Chief Justice Hughes’s opinion explained that the “efficacy of ratifications by state legislature . . . should be regarded as a political question pertaining to the political departments.” The Court further clarified, citing Luther, that it was a question solely for Congress, and not for the courts, whether an amendment had been adopted within a “reasonable time.”

It was against this background that the Court decided Colegrove v. Green in 1946. By that time, movement of populations from rural to urban areas had led to severe “malapportionment” in state legislatures. Throughout the country, state legislative districts were drawn such that voters in rural areas had disproportionate power compared to their urban counterparts. State governments, made up of the representatives of those rural voters, were unwilling to fix this problem. As a result, voters in underrepresented districts turned to the courts and the Constitution for a remedy. In Colegrove, a sevenmember Court was presented with a constitutional challenge to an Illinois districting arrangement where plaintiffs were members of districts with much larger populations than other districts. The challenge was based in part on the Guarantee Clause, as well as on the Fourteenth Amendment. A plurality of three Justices joined an opinion by Justice Frankfurter, concluding that the Court lacked jurisdiction in light of the “peculiarly political nature” of the case. The plurality noted that under Article I, Section 4, of the Constitution, “The Times, Places and Manner of holding Elections for . . . Representative, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” Citing that provision, the plurality concluded that the authority to regulate state districting rested “exclusively” with Congress and that courts had no authority to enter this political thicket. The Colegrove plurality’s view of the political question doctrine, as the Supreme Court later recognized, “left pervasive malapportionment unchecked.”.."
Supreme Court Political Doctrine 

The Political Question Doctrine: Historical Background (Part 2)

"This Legal Sidebar is the second in a six-part series that discusses the Supreme Court’s political question doctrine, which instructs that federal courts should forbear from resolving questions when doing so would require the judiciary to make policy decisions, exercise discretion beyond its competency, or encroach on powers the Constitution vests in the legislative or executive branches. By limiting the range of cases federal courts can consider, the political question doctrine is intended to maintain the separation of powers and recognize the roles of the legislative and executive branches in interpreting the Constitution. Understanding the political question doctrine may assist Members of Congress in recognizing when actions of Congress or the executive branch would not be subject to judicial review. For additional background on this topic and citations to relevant sources, please see the Constitution of the UnitedStates, Analysis and Interpretation.

The political question doctrine has its origins in the foundational case for judicial review, Marbury v.Madison. Marbury involved a suit seeking to force Secretary of State James Madison to deliver a signed commission to a newly appointed official, William Marbury. The commission had been signed by the previous Administration but not delivered. Following the change in presidential Administrations, Madison refused to deliver it. Among the issues presented in that case was whether the Court even had the authority to adjudicate the legality of Madison’s refusal to deliver the commission. That question, according to Chief Justice Marshall’s opinion for the Court, turned on “the nature” of the government action in question. As the Court explained, “Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.” Thus, if the act of an official is one in which the “executive possesses a constitutional or legal discretion, nothing can be more perfectly clear that their acts are only politically examinable.” However, if a “specific duty is assigned by law, and individual rights depend on the performance of that duty,” then injured individuals have a right to resort to the courts. According to the Chief Justice, “[t]he power of nominating to the senate, and the power of appointing the person nominated” were political questions, and fundamentally unreviewable. By contrast, “if, for example, Mr. Marbury had taken the oaths of a magistrate, and proceeded to act as one; in consequence of which a suit had been instituted against him, in which his defense had depended on his being a magistrate, the validity of his appointment must have been determined by judicial authority.” Ultimately, the Court concluded that the question of whether to deliver Marbury’s commission was not a political one, as Marbury had a legal right in the appointment..."
Supreme Court Political Doctrine(Pt. 2) 

The Political Question Doctrine: An Introduction (Part 1)

"This Legal Sidebar is the first in a six-part series that discusses the Supreme Court’s political question doctrine, which instructs that federal courts should forbear from resolving questions when doing so would require the judiciary to make policy decisions, exercise discretion beyond its competency, or encroach on powers the Constitution vests in the legislative or executive branches. By limiting the range of cases federal courts can consider, the political question doctrine is intended to maintain the separation of powers and recognize the roles of the legislative and executive branches in interpreting the Constitution. Understanding the political question doctrine may assist Members of Congress in recognizing when actions of Congress or the executive branch would not be subject to judicial review. For additional background on this topic and citations to relevant sources, please see the Constitution of the United States, Analysis and Interpretation.

The political question doctrine limits the ability of the federal courts to hear constitutional questions even where other justiciability requirements—such as standing, ripeness, and mootness—are met. The Supreme Court has stated that, for purposes of Article III of the Constitution, “no justiciable ‘controversy’ exists when parties seek adjudication of a political question.” The term political question is a legal term of art that on its face gives little indication of what sorts of cases the doctrine bars federal courts from deciding. The phrase, which has its origins in Chief Justice Marshall’s landmark opinion in Marbury v. Madison, is potentially misleading, as federal courts deal with political issues, in the sense of controversial and government-related issues, all the time. Rather than referring generally to any such political issue, the term political question expresses the principle that some issues are either entrusted solely to another branch of government or beyond the competence of the judiciary to review. A finding that a matter qualifies as a political question divests federal courts of jurisdiction, meaning they lack the power to rule on the matter.."
Supreme Court Political Doctrine 

Is Unauthorized Dissemination of a Draft Supreme Court Opinion a Federal Crime?

"On May 2, 2022, it was first reported that a news organization had obtained a draft Supreme Court majority opinion in Dobbs v. Jackson Women’s Health Organization and received confirmation from “a person familiar with the court’s proceedings” in the case. The Court subsequently authenticated the draft opinion, and Chief Justice Roberts ordered an internal investigation. Beyond discussion of the substance of the draft opinion and its implications for the constitutional right recognized in Roe v. Wade—and setting aside potential employment or professional consequences for the person or persons who shared the draft—a number of commentators have questioned whether the act of providing the draft opinion to a media organization was a federal crime. Several Members of the House Oversight Committee wrote aletter to the Attorney General on May 3, 2022, calling for, among other things, a Department of Justice investigation and a briefing on “whether criminal charges are being considered against the individual or individuals responsible for this breach.”

Although federal law does prohibit the dissemination of certain kinds of government information—such as “classified” information related to national security—there does not appear to be a federal criminal statute expressly prohibiting unauthorized sharing of Supreme Court documents like draft opinions. Several laws that have been publicly referenced in connection with disclosure of non-public Supreme Court information could apply to particular disclosures depending on the underlying facts, which remain unclear in this instance, but there would be legal hurdles associated with seeking to use any of the referenced laws to prosecute the person or persons who shared the draft opinion in Dobbs. The provenance of the disclosure is unknown, so the laws addressed in this Legal Sidebar may or may not apply depending on the facts. Further developments in the Supreme Court marshal’s investigation could also make additional laws relevant (for instance, 18 U.S.C. § 1001, which prohibits knowingly and willfully making a materially false statement “in any matter within the jurisdiction of the . . . judicial branch of the Government of the United States,” among other things). As relevant to the disclosure itself, this Legal Sidebar will briefly describe three federal criminal provisions that have been cited by commentators in the context of apparently unauthorized Supreme Court information dissemination and identify some of the potential issues that application of each of those laws could raise..."
Supreme Court Opinions 

A Code of Conduct for the Supreme Court? Legal Questions and Considerations

"The Code of Conduct for United States Judges (the Code) is a set of ethical canons that the JudicialConference of the United States (Judicial Conference) has adopted to promote public confidence in the integrity, independence, and impartiality of the federal judiciary. The Code governs the behavior of most federal judges; however, it does not explicitly apply to Justices of the U.S. Supreme Court. Although the Justices consult the Code, along with other sources, for guidance when performing their judicial duties, the Court is not presently subject to a defined body of general ethical rules.

Some observers maintain that “Supreme Court justices should be bound by the same code of ethics that all other federal judges are required to follow.” To that end, some Members of Congress have introduced legislation that would require the Judicial Conference to “issue a code of conduct[] which applies to each justice” on the Court. While some commentators and legislators have supported ethical rules for the Supreme Court for years, the issue gained increased prominence in March 2022 following reports that Virginia Thomas, wife of Associate Justice Clarence Thomas, sent text messages in January 2021 to thenWhite House Chief of Staff Mark Meadows encouraging him to contest the result of the 2020 presidential election. In response to those reports, some have debated whether Justice Thomas should recuse himself from certain cases voluntarily, while others have called for broader changes to the Court’s ethical obligations that would bind all the Justices. By contrast, some commentators question whether Congress should—or even could—impose a code of ethics on the Supreme Court.

This Sidebar canvasses the relevant legal considerations surrounding proposals to establish a Supreme Court code of conduct. After discussing the existing Code that applies to lower federal judges, the Sidebar describes recent legislative proposals to create a similar code for the Supreme Court, as well as potential constitutional obstacles to those proposals..."
Supreme Court code of conduct 

Supreme Court Appointment Process: President’s Selection of a Nominee

"The appointment of a Supreme Court Justice is an event of major significance in American politics. Each appointment is of consequence because of the enormous judicial power the Supreme Court exercises as the highest appellate court in the federal judiciary. Appointments are usually infrequent, as a vacancy on the nine-member Court may occur only once or twice, or never at all, during a particular President’s years in office. Under the Constitution, Justices on the Supreme Court receive what can amount to lifetime appointments which, by constitutional design, helps ensure the Court’s independence from the President and Congress.

The procedure for appointing a Justice is provided for by the Constitution in only a few words. The “Appointments Clause” (Article II, Section 2, clause 2) states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court.” The process of appointing Justices has undergone changes over two centuries, but its most basic feature—the sharing of power between the President and Senate—has remained unchanged: To receive appointment to the Court, a candidate must first be nominated by the President and then confirmed by the Senate.

Political considerations typically play an important role in Supreme Court appointments. It is often assumed, for example, that Presidents will be inclined to select a nominee whose political or ideological views appear compatible with their own. The political nature of the appointment process becomes especially apparent when a President submits a nominee with controversial views, there are sharp partisan or ideological differences between the President and the Senate, or the outcome of important constitutional issues before the Court is seen to be at stake.

Additionally, over more than two centuries, a recurring theme in the Supreme Court appointment process has been the assumed need for professional excellence in a nominee. During recent presidencies, nominees have at the time of nomination, most often, served as U.S. appellate court judges. The integrity and impartiality of an individual have also been important criteria for a President when selecting a nominee for the Court.

The speed by which a President selects a nominee for a vacancy has varied during recent presidencies. A President might announce his intention to nominate a particular individual within several days of when a vacancy becomes publicly known, or a President might take multiple weeks or months to announce a nominee. The factors affecting the speed by which a President selects a nominee include whether a President had advance notice of a Justice’s plan to retire, as well as when during the calendar year a Justice announces his or her departure from the Court..."
Supreme Court Appointment 

Presidential Commission on the Supreme Court of the United States

"Executive Summary

On April 9, 2021, President Joseph R. Biden, Jr. issued Executive Order 14023 establishing this Commission, to consist of “individuals having experience with and knowledge of the Federal judiciary and the Supreme Court of the United States.” The Order charged the Commission with producing a report for the President that addresses three sets of questions. First, the Report should include “[a]n account of the contemporary commentary and debate about the role and operation of the Supreme Court in our constitutional system and about the functioning of the constitutional process by which the President nominates and, by and with the advice and consent of the Senate, appoints Justices to the Supreme Court.” Second, the Report should consider the “historical background of other periods in the Nation’s history when the Supreme Court’s role and the nominations and advice-and-consent process were subject to critical assessment and prompted proposals for reform.” Third, the Report should provide an analysis of the principal arguments for and against particular proposals to reform the Supreme Court, “including an appraisal of [their] merits and legality,” and should be informed by “a broad spectrum of ideas.”

The Report begins by explaining the genesis of today’s Court reform debate, including by identifying developments that gave rise to President Biden’s decision to issue the April 2021 Executive Order, particularly the debates surrounding the most recent nominations. This Introduction emphasizes that the Court’s composition and jurisprudence long have been subjects of public controversy and debate in the nation’s civic life: The Court serves as a crucial guardian of the rule of law and also plays a central role in major social and political conflicts. Its decisions have profound effects on the life of the nation. Though conflict surrounding the processes by which the President nominates and the Senate confirms Justices is not new, it has become more intensely partisan in recent years.

The Introduction also articulates three common and interrelated ideas frequently invoked in reform debates and throughout the Chapters of the Report: the importance of protecting or enhancing the Court’s legitimacy; the role of judicial independence in our system of government; and the value of democracy and its relationship to the Supreme Court’s decisionmaking. These important ideas can mean different things to different people. The Introduction discusses the range of meanings ascribed to these terms, with the aim of clarifying how they are deployed in arguments for and against reform.."
Supreme Court 

Supreme Court Ruling May Affect the Fate of Climate Change Liability Suits

"On May 17, 2021, the Supreme Court issued a ruling that could delay climate liability suits—that is, lawsuits seeking damages for alleged climate change-related injuries that result from selling and producing fossil fuel products. In BP p.l.c. v. Mayor and City Council of Baltimore, the Court considered the scope of judicial review of orders that transfer a lawsuit from federal to state court. The Court expanded the scope of appellate review of orders remanding climate liability cases to state court, a holding that will likely postpone judicial review of the merits of these suits.

Legal challenges over the appropriate court venue may affect the law and precedent that is applied in more than 20 climate liability suits filed by state and local governments against fossil fuel producers in state courts. This Legal Sidebar reviews the background of the Baltimore case, the Supreme Court’s ruling, its potential effect on climate liability suits, and considerations for Congress.

Removal from State to Federal Court

The Baltimore case arose from lower court decisions related to whether climate liability suits belong in state or federal court. Article III, Section 2 of the Constitution limits federal courts’ jurisdiction to cases involving federal statutes, the Constitution, or treaties.

A defendant may remove (transfer) a suit brought in state court to a federal district court if it falls with the federal court’s jurisdiction. If the plaintiff appeals the defendant’s removal action, a federal court can remand the case to state court if it concludes that the suit was improperly removed. Under 28 U.S.C. §1447(d), such remand orders are not subject to appellate review.

Congress established two exceptions to the Section 1447(d) bar on appellate review of remand orders. In 1964, Congress permitted appellate review of remand orders if the state case was removed to federal court under the civil rights removal statute, 28 U.S.C. § 1443, which permits removal to federal court of suits in which “equal civil rights of citizens” cannot be enforced in state court. In 2011, Congress extended the exception to allow appellate review of removal orders under the federal officer removal statute, 28 U.S.C.§ 1442, which authorizes the removal of state cases to federal court against any officer or agency of the United States for any act related to federal authority. It is this removal statute that provided a mechanism for the Supreme Court to review the Baltimore case..."
Supreme Court and climate change 

Proposals to Modify Supreme Court Justices’ Tenure: Legal Considerations

"To insulate the federal judiciary from political influence, the Constitution specifies that Supreme Court Justices “shall hold their Offices during good Behaviour.” While the Constitution does not define “good Behaviour,” the prevailing interpretation is that Congress cannot remove Supreme Court Justices from office except via impeachment. Thus, under existing law and longstanding historical practice, Supreme Court Justices generally enjoy life tenure.

Some maintain that life tenure for Supreme Court Justices promotes important values, including judicial independence and expertise. Others support establishing age or term limits for Supreme Court Justices for various reasons, including regularizing judicial appointments and reducing the risk that failing health will negatively affect a Justice’s work. While many proposals to modify Supreme Court Justices’ tenure involve amending the Constitution, some maintain that Congress could impose term or age limits legislatively. While no court has yet considered that question directly, a court might conclude that the Constitution’s text, structure, and history prohibits legislative adjustments to judicial tenure.

If Congress chose to amend the Constitution to alter the Justices’ tenure, it would have to decide how to structure that amendment. For instance, Congress could consider whether to impose an age or a term limit, as well as how long the Justices’ tenure will last. These options pose various legal issues that Congress may explore. Besides modifying judicial tenure, Congress could also consider other ways to influence the Court’s composition and operations, such as changing the Court’s size..."
Supreme Court Justice Tenure 

Supreme Court Nominations, 1789 to 2020: Actions by the Senate, the Judiciary Committee, and the President

"The procedure for appointing a Justice to the Supreme Court of the United States is provided for by the Constitution in only a few words. The “Appointments Clause” (Article II, Section 2, clause 2) states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court.” The process of appointing Justices has undergone changes over two centuries, but its most basic feature—the sharing of power between the President and Senate—has remained unchanged. To receive a lifetime appointment to the Court, a candidate must first be nominated by the President and then confirmed by the Senate. An important role also has come to be played midway in the process (after the President selects, but before the Senate considers) by the Senate Judiciary Committee.

On rare occasions, Presidents also have made Supreme Court appointments without the Senate’s consent, when the Senate was in recess. Such “recess appointments,” however, were temporary, with their terms expiring at the end of the Senate’s next session. The last recess appointments to the Court were made in the 1950s.

The need for a Supreme Court nomination arises when a vacancy occurs or is scheduled to occur on the Court.1 The most recent Court vacancy to be included in this report was created by the death of Ruth Bader Ginsburg on September 18, 2020. In response to Justice Ginsburg’s death, on September 29, 2020, President Donald Trump nominated Amy Coney Barrett, a sitting judge on the U.S. Court of Appeals for the Seventh Circuit, to replace Justice Ginsburg. It was the 164 th time a President of the United States has nominated someone to be a Supreme Court Justice.

The Barrett nomination received four days of confirmation hearings, after which the Senate Judiciary Committee, on October 22, 2020, by a vote of 12-0, favorably reported the nomination to the Senate. The committee vote on the Barrett nomination was boycotted by the 10 Democratic Senators on the committee, resulting in the absence of recorded “nay” votes on the nomination. Following three days of floor debate and a 51-48 vote, on October 25, to close debate on the nomination, the Senate, on October 26, confirmed Judge Barrett to the Court, by a 52-48 vote.

In the past, most, but not all, Supreme Court nominations have received Senate confirmation. From the first appointments in 1789, the Senate has confirmed 127 out of 164 Court nominations. Of the 37 unsuccessful nominations, 11 were rejected in Senate roll-call votes, while most of the rest, in the face of committee or Senate opposition to the nominee or the President, were withdrawn by the President, or were postponed, tabled, or never voted on by the Senate. The 37 unconfirmed nominations, however, included those of six individuals who were later renominated and confirmed.."
Supreme Court Nominations