Lower courts' precedents could elevate trust for highest court

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Public trust in the U.S. Supreme Court has declined. Some of that is inevitable when the court's docket includes cases about hotly contested political issues. But some of the decline — revolving around the justices' ethics and the court's opacity — is mostly self-inflicted. Members of Congress seek to fill the vacuum with legislation to regulate the court, which raises separation-of-powers concerns.

Fortunately, the court itself has the tools to repair its reputation and protect its independence. It can start by looking to its judicial counterparts — the state supreme courts — for simple, sensible policies that promote public trust.

First, the court needs a comprehensive, written code of ethics. Most Americans are surprised to learn that it does not have one. The code of conduct governing all federal judges exempts the Supreme Court, which recently, almost grudgingly, said it "nonetheless takes guidance" from it. By contrast, most state codes, many based on a model from the American Bar Association, apply to state supreme courts.

Court-watchers suspect that the justices are split on whether to have a code. But the subject of the court's integrity is too important to wait for the day that nine members reach unanimity. A majority, hopefully led by the chief justice, should announce immediately that the court intends to draft and adopt a code of ethics.

How that work is done can build trust or further diminish it. The court should set a prompt, firm deadline for a code and select a committee of distinguished judges, scholars and lawyers to help draft it. The committee should encourage wide public comment.

This, generally, is how the Minnesota Supreme Court makes its rules. Its standing rules committees — criminal, civil, evidence, family, bar admission, professional conduct and so on — meet, share ideas and deliberate. Usually a justice attends as liaison so that the court can stay abreast of this important work. When the committee recommends a significant rule change, the court solicits public comment, often has a public hearing and always issues an order that explains why the proposal has been adopted or not.

Second, any Supreme Court code of conduct should be enforceable, not merely aspirational. Yes, it's difficult to craft a process to discipline a member of a high court, but it can be done. In Minnesota, the board of judicial standards and its director investigate alleged violations and retired judges preside over contested hearings. And a separate process is available for a litigant to argue to a panel of retired justices that a justice should not sit on a particular case due to a conflict of interest.

Third, the U.S. Supreme Court should formally recognize that rules are not enough. Integrity and the appearance of it are matters of culture. It doesn't help that, when some of the justices are asked about their ethics, they duck questions, equivocate or express indignation. Going forward, justices and court staff should presume that any outside income, gift, loan or perk, even under the guise of friendship, may be to gain influence.

In my experience, most Minnesota judges subscribe to and promote an ethical culture. Not only do they make reasonably detailed disclosures of their finances, as required by law, most also take care to keep their conduct above reproach. The judges I know routinely ask for separate lunch checks or split the tab. Most of them would be horrified at the idea of accepting a lavish vacation on someone else's dime. We should expect no less from our most powerful jurists.

Fourth, the Supreme Court should not sweep under the rug the recent allegations of members' ethical improprieties or failures of disclosure. A good start would be to commission and empower an independent audit of members' last 10 years of outside income, gifts, loans, investments, travel and financial transactions.

Finally, because transparency and accountability are critical to an ethical culture, the court should be more open to the public. For example, the court's opinions defend the constitutional ideals of open courtrooms and public trials, but the court itself doesn't even allow its hearings to be seen by more than a few. By contrast, most state supreme courts televise their arguments, and the Minnesota Supreme Court livestreams them.

The high court could also follow Minnesota's lead and take occasional field trips outside the capital beltway. Minnesota appellate courts hear cases at our three law schools and in high schools and courthouses around the state. A Supreme Court visit is often the occasion for a communitywide dinner, where people from all walks of life mingle to discuss the law underlying the case to be argued. The next day, after argument, the justices doff their robes, field questions from the auditorium stage and then visit civics classes. Years later they hear that their visit caused students to consider careers in public service.

Under the federal Constitution's supremacy clause, the U.S. Supreme Court instructs the state supreme courts on issues of federal law. Now, facing its own issues of ethics, transparency and culture, the court would do well to learn from those same state courts.

David Lillehaug is a former Minnesota Supreme Court Justice and U.S. Attorney.