Financial Disclosure and the Supreme Court

Financial Disclosure and the Supreme Court

Legal Sidebari

Financial Disclosure and the Supreme Court
Updated November 22, 2023
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. Recent media reports regarding the
Justices’ compliance with financial disclosure laws have 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, including the Supreme Court Code of Conduct released in
November 2023. (While this Sidebar addresses the Code’s references to financial disclosure and other
ethics laws, another Sidebar considers the implications of the Code more generally.) 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;
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• 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 sales or exchanges of securities that exceed $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.
The EIGA provides remedies for failure to file or for filing false reports. The Attorney General may bring
civil actions against individuals who knowingly and willfully falsify or fail to file or report required
information and may assess fines up to $50,000. Individuals who fail to file or report information or who
falsify information may also face criminal penalties including fines and imprisonment.
Application to the Judicial Branch
Financial disclosure requirements apply to judicial employees and officers. The EIGA defines judicial
officer to include the Chief Justice of the United States and the Associate Justices of the Supreme Court.
The Judicial Conference of the United States, which is the “principal policy making body” for the federal
courts, has authority under the EIGA to administer the financial disclosure requirements for judicial
officers and employees. Covered judicial officers and employees file their reports with the Judicial
Conference, which then reviews filings for compliance. While judicial branch financial disclosure reports
must be made available for public inspection, the law does not require the immediate and unconditional
availability of judicial branch reports if personal and sensitive information might endanger a covered
individual or his or her family.
The Judicial Conference is permitted to delegate its authority to an “ethics committee” of its creation, and
in 1990 it delegated its authority under the EIGA to the Committee on Financial Disclosure. In 2017, the
committee approved a revised set of financial disclosure regulations that govern the filing of, and access
to, financial disclosure reports by judicial employees and judicial officials under the EIGA.
Recusal and Misconduct Statutes
Transparency regarding the financial transactions of federal judges may be relevant to the operation of
other federal laws that govern the judiciary. For example, 28 U.S.C. § 455 requires federal judges
(including Supreme Court Justices) to “disqualify” themselves in any proceeding in which their
“impartiality might reasonably be questioned.” The law also requires recusal in specific circumstances,
including when the judge knows he or she “has a financial interest in the subject matter in controversy or
in a party to the proceeding, or any other interest that could be substantially affected by the outcome of
the proceeding.”
Long-standing Supreme Court practice allows the Justices to decide themselves whether to recuse from a
matter. While the Justices do periodically recuse themselves from cases, including for financial reasons,
they may choose to explain their recusal decisions but are under no obligation to do so, nor is there any

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mechanism for any person to require a Justice’s recusal or for reviewing Justices’ recusal decisions.
Another federal law that governs judicial discipline, the Judicial Councils Reform and Judicial Conduct
and Disability Act of 1980, authorizes anyone to file a complaint alleging that a federal judge has
“engaged in conduct prejudicial to the effective and expeditious administration of the business of the
courts.” That law, however, does not apply to Supreme Court Justices.
Recent Changes to Supreme Court Financial Disclosure Requirements
Statutory Updates
On May 13, 2022, President Biden signed the Courthouse Ethics and Transparency Act, which requires
online publication of financial disclosure reports of judicial officers (including Supreme Court Justices),
bankruptcy judges, and magistrate judges. While the EIGA always mandated public access to judicial
officer financial disclosure reports, there was no central database to access the filings, and reports were
available only “in paper documents or on thumb drives.” The new law directed the Administrative Office
of the United States Courts (AO) to establish a “searchable internet database to enable public access to
any report required to be filed” under the EIGA. The AO launched the public database on November 7,
2022, and the public can now access electronic versions of federal judges’ reports. The EIGA’s allowance
for security-related redactions in judicial branch financial disclosure reports remains unchanged.
The Courthouse Ethics and Transparency Act also extended the STOCK Act’s PTR requirements to
judicial officers (including Supreme Court Justices), bankruptcy judges, and magistrate judges. Under the
provisions discussed above, federal judges are now required to report any purchase, sale, or exchange of
securities that exceeds $1,000 within 45 days of the transaction. The new public database includes access
to all of these periodic transaction reports.
Regulatory Updates
Interpretation of the EIGA’s financial disclosure requirements as applied to judicial officers and
employees has also recently changed. As mentioned above, the Committee on Financial Disclosure within
the Judicial Conference prescribes rules regarding financial disclosure by judicial officers. Those rules are
found in Volume 2, Part D, of the Guide to Judiciary Policy.
As noted above, as part of their financial disclosure reports, all covered individuals are statutorily
required to report gifts received from any source other than a relative with the exception of “food,
lodging, or entertainment received as personal hospitality.” The EIGA defines personal hospitality of any
individual as “hospitality extended for a nonbusiness purpose by an individual, not a corporation or
organization, at the personal residence of that individual or the individual’s family or on property or
facilities owned by that individual or the individual’s family.”
According to a March 2023 letter from the director of the AO, the Committee on Financial Disclosure
revised its regulations, effective March 14, 2023, specifically regarding the definition of personal
hospitality. These updated regulations appear in the notes that accompany the definition of personal
hospitality:
(1) The personal hospitality gift reporting exemption applies only to food, lodging, or entertainment
and is intended to cover such gifts of a personal, non-business nature. Therefore, the reporting
exemption does not include:
gifts other than food, lodging or entertainment, such as transportation that substitutes for commercial
transportation;
gifts extended for a business purpose;

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gifts extended at property or facilities owned by an entity, rather than by an individual or an
individual’s family, even if the entity is owned wholly or in part by an individual or an individual’s
family;
gifts paid for by any individual or entity other than the individual providing the hospitality, or for
which the individual providing the hospitality receives reimbursement or a tax deduction related to
furnishing the hospitality; or
gifts extended at a commercial property, e.g., a resort or restaurant, or at a property that is regularly
rented out to others for a business purpose.
The notes also clarify that judicial officers and employees are never permitted “to solicit or accept
anything of value from a person seeking official action from or doing business with the court or other
entity served by the judicial officer or employee, or from any other person whose interests may be
substantially affected by the performance or nonperformance of the judge’s official duties.”
There is some uncertainty as to whether these regulations apply to the Supreme Court. Although the
regulations explicitly include Justices in the definition of judicial officer, some have questioned whether
the Judicial Conference has authority over the Supreme Court. In his 2011 Year-End Report, the Chief
Justice explained that because the “Judicial Conference is an instrument for the management of the lower
federal courts, its committees have no mandate to prescribe rules or standards for any other body.”
Nonetheless, at least one Associate Justice has indicated his intention to follow the 2023 guidance going
forward, and, as discussed further below, the Justices have stated that they comply with current Judicial
Conference regulations on financial disclosure.
Supreme Court Code of Conduct
On November 13, 2023, the United States Supreme Court announced it was, for the first time, adopting a
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.” Noting that most of the rules and principles within the Code
“are not new,” the Court explained that the Code “largely represents a codification of principles that we
have long regarded as governing our conduct.” The Code, discussed in more detail in another Legal
Sidebar, is a set of five ethical canons and accompanying commentary. The canons are nearly the same as
the existing canons in the Code of Conduct for U.S. Judges, which applies only to lower federal judges.
While many provisions of the Supreme Court Code generally address conflicts of interest and
appearances of impropriety, specific Code provisions discuss requirements related to financial activities
and compliance with the EIGA. For example, Canon 4(H) declares the Justices’ commitment to comply
with financial disclosure laws, and the commentary accompanying the Code states that the Justices
comply with the EIGA, STOCK Act, and current Judicial Conference regulations on financial disclosure.
Although the Code affirms the Justices’ compliance with existing financial disclosure laws and
regulations, it seemingly does not impose any new financial disclosure requirements on the Justices.
Considerations for Congress
Financial disclosure laws are used to identify potential or actual conflicts of interest in order to promote
integrity in the federal government. Congress may consider options to modify or clarify current financial
disclosure requirements for judicial officers. For example, the Supreme Court Ethics, Recusal, and
Transparency Act would, according to its sponsor, “improve disclosure of travel and hospitality for
judges” by requiring the counselor to the Chief Justice (with approval of the Chief Justice) to adopt rules
regarding disclosure of gifts, travel, and income that are “at least as rigorous as the House and Senate
disclosure rules.” This proposal was introduced before the Justices released their November 2023 Code of
Conduct, and it is unclear to what extent the Code may overlap with some of the requirements that this
bill would impose.

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Financial disclosure is only one facet of a wider theme of government ethics. The EIGA, as amended,
includes not only the financial disclosure requirements discussed above but also gift and outside earned
income and employment limitations that apply to all officers and employees of the government. While the
Judicial Conference’s implementing regulations for these laws exclude Supreme Court Justices from
coverage, the commentary accompanying the recent Supreme Court Code of Conduct states that the
Justices comply with current Judicial Conference regulations on gifts, foreign gifts and decorations, and
outside earned income, honoraria, and employment in addition to regulations about financial disclosure.
This is consistent with the Justices’ long-standing voluntary compliance with certain Judicial Conference
regulations. The Code, however, does not include any enforcement mechanisms, meaning there is no
process to address alleged violations of the Code.
Proposed legislation about Supreme Court financial disclosure and other ethics requirements, including
congressional attempts to enforce the Supreme Court Code of Conduct through legislation or oversight,
may raise questions regarding Congress’s authority to regulate the Supreme Court. Some scholars have
suggested that Chief Justice Roberts in his 2011 Year-End Report questioned whether Congress may
impose ethical requirements on the Supreme Court. Other scholars have argued that while constitutional
obstacles—such as separation-of-powers issues—may exist, the Constitution does provide Congress with
authority to regulate Supreme Court ethics. This authority, however, is untested, leaving a wide array of
questions unanswered regarding the validity of current law and the extent to which Congress may impose
future regulations.
Despite any doubts as to congressional authority, the Justices, through their newly released Code of
Conduct, have acknowledged that they file “the same financial disclosure reports as other federal judges.”
Without enforcement mechanisms in the Code, however, compliance with federal ethics laws may be left
to the discretion of the Justices.

Author Information

Whitney K. Novak

Legislative Attorney

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