The Ethics Void: Why the Supreme Court Needs Rules and Term Limits

When norms fail, rules must take their place.

For much of American history, there was an unspoken expectation that justices of the Supreme Court would avoid even the faintest whiff of impropriety out of respect for the solemnity of the office. The Court, we were told, policed itself because its members understood their unique role in a democracy.

But human nature is what it is. Power tempts. And when the only guardrails are unwritten norms and personal conscience, the inch we give quickly becomes a mile.

This term’s ethical lapses — from Justice Alito’s defiance over controversial flags to Justice Thomas’s refusal to step aside despite his wife’s political activism — are just the latest in a long pattern of missteps. The time for trusting justices to regulate themselves is over. If the Court won’t act to protect its own legitimacy, then the public and Congress must do it for them.

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The Ethics Void

Unlike every other federal judge, Supreme Court justices are not bound by a formal, enforceable code of ethics. They decide for themselves when to recuse, what to disclose, and what outside relationships are acceptable.

This term brought that reality into sharp relief. Thomas refused to step aside from election cases despite his wife’s direct involvement in efforts to overturn the 2020 election. Alito faced widespread outrage after a Stop the Steal flag and a Christian nationalist symbol were flown at his homes, yet he declined to recuse from January 6‑related cases.

In Baker v. Coates, the Court was unable to hear a case because five justices — Alito, Sotomayor, Gorsuch, Barrett, and Jackson — properly recused themselves over conflicts with a publishing company involved. That’s what happens when conflicts are left to accumulate unchecked: justice delayed or denied.

These are just recent examples.

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A Longstanding Problem

This didn’t start with Thomas or Alito. In 1969, Justice Abe Fortas resigned under pressure after it was revealed he had taken a $20,000 payment from a foundation tied to a financier under investigation. In the 1970s, Justice William O. Douglas faced impeachment attempts over financial entanglements. In 2004, Justice Scalia refused to recuse himself from a case involving Vice President Dick Cheney, despite having gone duck hunting together.

Had a clear ethical framework with enforceable guidelines and consequences been in place all along, many of these scandals could have been prevented, resolved promptly, or avoided entirely, sparing the Court and the country the escalating erosion of trust we see today.

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Why Lifetime Appointments Make It Worse

Lifetime tenure, intended to preserve judicial independence, has become part of the problem.

Justices today routinely serve 30–40 years. Over that time, they accumulate personal, financial, and ideological entanglements that complicate their impartiality. They sign lucrative book contracts with major publishers, creating conflicts when those companies appear before the Court. They hold stock, earn speaking fees, and watch their families develop business and political ties.

We expect them to live like monks, but we give them no structure or support to do so. That system was always destined to crack.

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Who Picks the Justices and Why That Matters

The Constitution grants the President the power to nominate justices, subject to confirmation by the Senate. But in practice, outside interest groups, notably the Federalist Society, have come to dominate the selection process, grooming candidates for ideological reliability rather than ethical excellence or professional merit.

Other democracies do it differently.
— In Germany, the Constitutional Court draws from a pool of respected judges and legal scholars nominated partly by the legislature.
— In Canada, the judiciary and bar play a major role in recommending and vetting candidates.
— In the UK, an independent commission vets and nominates top judges.

We don’t need to abandon the presidential nomination and Senate confirmation process, but we should add an independent, merit-based vetting layer to ensure nominees have the appropriate experience, professionalism, and ethical record. Judges should be chosen for their commitment to justice, not just their ideology.

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The Publisher’s Hedge & Other Quiet Conflicts

The Baker v. Coates case illustrated just one kind of quiet conflict: publishers aggressively pursuing book deals with sitting justices. These deals aren’t just about prestige or profit. They also create potential conflicts that can force recusals or at least soften scrutiny when cases involving those publishers or their parent companies come before the Court. It’s a shrewd form of hedging: securing influence or at least a seat at the table by tying justices to a business relationship.

But publishing is only one example of how these conflicts accumulate. Over decades on the bench, justices inevitably build financial portfolios, sign contracts, give speeches, write books, and see their spouses, children, and friends take on jobs and causes of their own. All of these ties — human and financial — become entry points for lobbyists, corporations, and donors eager to ingratiate themselves or create a reason a justice might hesitate to rule against them.

They may offer opportunities, donations, or invitations not with the expectation of an outright favor but in the hope of creating an invisible thread of goodwill or a conflict that takes justice off a case.

These quiet conflicts aren’t always illegal or even intentional. But when nine unelected individuals hold so much power for so long, and when no rules force them to divest or disclose comprehensively, the accumulation of ties and opportunities for exploitation is inevitable.

For liberals and institutionalists alike, the lesson is clear: a system built on trust and restraint alone is an invitation for influence peddling. Without enforceable guardrails, the risk isn’t just impropriety — it’s the slow corrosion of impartial justice itself.

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What Reform Could Look Like

There are solutions, and none require rewriting the Constitution.

• Term limits: An 18‑year, non‑renewable term, with staggered appointments every two years, would restore regular turnover and reduce the pressure to appoint ideologues for lifetime control. Transitioning to such a system would take planning — current justices would likely be grandfathered in — but it’s doable.

• A binding ethics code: Modeled on the Judicial Conference rules that govern lower courts, with mandatory disclosure of outside income, gifts, and a mechanism for reviewing recusals.

• Merit-based vetting: An independent panel of judges, academics, and legal professionals could screen candidates before nomination, ensuring that they meet baseline ethical and professional qualifications.

• Court expansion? Congress has the power to adjust the Court’s size by statute. But even if expansion happens, it is no substitute for ethics and term limits. It addresses imbalance but not legitimacy.

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Justice Demands Accountability

The Court was never meant to stand above the people it serves. If it cannot govern itself with dignity and restraint, then it falls to the rest of us to remind it: justice does not thrive on trust alone. It demands accountability.

This matters because the Supreme Court is not just another branch of government. It is the final arbiter of constitutional rights and limits on power. Its decisions shape every aspect of our lives: who can vote, who can marry, what healthcare we receive, how our environment is protected, and whether democratic norms survive for the next generation.

When nine unelected justices wield this much power, making life‑altering decisions that echo for decades, the very least we should demand is that they follow clear ethical rules, recuse when conflicted, and step aside when their time is up.

We can’t wait for the justices to fix themselves. We can and must act.

• Support watchdog organizations like Fix the Court, Demand Justice, and Common Cause, which are pressuring Congress and the Court to adopt ethics rules and term limits.

• Call your members of Congress at the Capitol switchboard: (202) 224‑3121 and tell them to support the Supreme Court Ethics, Recusal & Transparency Act and term limits for justices.

  Here’s a simple script you can use:

  “Hello, my name is [NAME] and I’m a constituent from [CITY, STATE]. I’m calling to urge [SENATOR/REPRESENTATIVE] to support enforceable ethics rules, mandatory recusals, financial transparency, and term limits for the Supreme Court. The Court has lost the public’s trust, and it’s time for Congress to act to restore integrity. Thank you.”

Progress won’t come overnight, but if the Court refuses to police itself, then the public must. The highest court in the land should reflect the highest standards, and we should accept nothing less.

Bibliography:

• Barrón-López, Laura, and Harry Zahn. “Flag at Justice Alito’s Home Raises Recusal Questions.” PBS NewsHour, May 17, 2024.

• Durkee, Alison. “Supreme Court Won’t Hear Case Because Too Many Justices Recused.” Forbes, May 19, 2025.

• “By the Numbers — SCOTUSblog Stat Pack on OT24.” SCOTUSblog, July 1, 2025.

• “Alito Rebukes Recusal Critics over Flag Controversy.” Politico, May 29, 2024.

• Senate Judiciary Committee. “S. 359 — Supreme Court Ethics, Recusal, and Transparency Act of 2023.” Congress.gov, February 9, 2023.

• “Whitehouse, Johnson, Colleagues Re‑Introduce Supreme Court Ethics, Recusal, and Transparency Act.” Senate Press Release, May 20, 2025.

• “Abe Fortas Resigns from Supreme Court after Ethics Scandal.” Politico, May 15, 2008.