SUPREME ETHICS: Democrats on the Hill, led by Congresswoman Louise Slaughter (D-NY), are once again pushing legislation that would impose a code of ethics upon the U.S. Supreme Court. The Supreme Court itself has repeatedly rejected the idea of adopting such an ethics code, including the current Roberts Court. Members of the Court do voluntarily agree, however, to follow the same rules as other federal judges on honoraria, gifts, and outside income.
There is a Judicial Code of Conduct for United States Judges– which binds all federal judges except the U.S. Supreme Court–which requires recusal in certain instances of bias and prohibits federal judges from engaging in various acts that may create an appearance of partiality, including engaging in political activities. So why doesn’t this Judicial Code of Conduct also apply to Supreme Court Justices? Because the Supreme Court is the only court that is constitutionally required to exist, with all lower federal courts existing only insofar as Congress wishes to establish them. The lower federal courts, therefore, are “creatures” of Congress, established and controlled by it. Congress’ ability to impose a code of conduct upon judges it creates is thus clear, as a legal matter.
But the Supreme Court is not created by Congress; it has independent constitutional existence. While Congress has power to regulate the appellate jurisdiction of the Supreme Court, give Senatorial advice and consent to Supreme Court nominations, impeach Justices, control the Supreme Court’s budget and even to enact legislation defining the number of Justices that sit on the Court, it otherwise lacks a clear textual authority to regulate the way the Court adjudicates cases. The Court’s historic position is that because it isn’t created by Congress, Congress cannot impose a code of ethics upon it; doing so would violate separation of powers.
While having the Supreme Court abide by a Code of Ethics sounds good at first blush, the question isn’t really whether it should have such a code, but whether Congress should be able to impose one upon a co-equal branch of government. And the reasons cited for congressional enactment of such a code focus exclusively on supposed unethical behavior by conservative Justices. For example, Justice Clarence Thomas failed to report his spouse’s income from conservative groups, necessitating several years of revised disclosure forms. Justices Antonin Scalia and Thomas have attended events at the National Lawyers’ Convention of the Federalist Society.
But of course, liberal Justices have engaged in the exact same behavior. Justice Ginsburg has lent her name and given speeches to the NOW Legal fund and recently made comments about same-sex marriage cases that clearly indicate her prejudgment on the issue. Justice Elena Kagan refused to recuse herself from the recent Obamacare subsidy case, King v. Burwell, even though she served as the U.S. Solicitor General and was intimately involved in the defense of the law. And like Ginsburg, Kagan’s comments and officiating at a same-sex marriage ceremony have called for her recusal from the same-sex marriage cases now pending before the Court. Justice Breyer has faced his own calls for recusal, based on potential financial conflicts.
The point is that while it may be a good idea for the Supreme Court voluntarily to adopt ethics rules for itself (which it de facto seems already to have done), I am highly skeptical about Congress imposing them, and the political mischief that could ensue. Indeed, liberals/progressives are already overtly attempting to bully the Court, calling for term limits (which, btw, would require a constitutional amendment), and generally calling for “reforms” of a Court they think is too conservative (and likely to stay that way for some time).
My hunch is that congressionally-imposed SCOTUS ethics rules would only further politicize the Court, which would not be good for the rule of law.
posted 4/25 Instapundit
There is a Judicial Code of Conduct for United States Judges– which binds all federal judges except the U.S. Supreme Court–which requires recusal in certain instances of bias and prohibits federal judges from engaging in various acts that may create an appearance of partiality, including engaging in political activities. So why doesn’t this Judicial Code of Conduct also apply to Supreme Court Justices? Because the Supreme Court is the only court that is constitutionally required to exist, with all lower federal courts existing only insofar as Congress wishes to establish them. The lower federal courts, therefore, are “creatures” of Congress, established and controlled by it. Congress’ ability to impose a code of conduct upon judges it creates is thus clear, as a legal matter.
But the Supreme Court is not created by Congress; it has independent constitutional existence. While Congress has power to regulate the appellate jurisdiction of the Supreme Court, give Senatorial advice and consent to Supreme Court nominations, impeach Justices, control the Supreme Court’s budget and even to enact legislation defining the number of Justices that sit on the Court, it otherwise lacks a clear textual authority to regulate the way the Court adjudicates cases. The Court’s historic position is that because it isn’t created by Congress, Congress cannot impose a code of ethics upon it; doing so would violate separation of powers.
While having the Supreme Court abide by a Code of Ethics sounds good at first blush, the question isn’t really whether it should have such a code, but whether Congress should be able to impose one upon a co-equal branch of government. And the reasons cited for congressional enactment of such a code focus exclusively on supposed unethical behavior by conservative Justices. For example, Justice Clarence Thomas failed to report his spouse’s income from conservative groups, necessitating several years of revised disclosure forms. Justices Antonin Scalia and Thomas have attended events at the National Lawyers’ Convention of the Federalist Society.
But of course, liberal Justices have engaged in the exact same behavior. Justice Ginsburg has lent her name and given speeches to the NOW Legal fund and recently made comments about same-sex marriage cases that clearly indicate her prejudgment on the issue. Justice Elena Kagan refused to recuse herself from the recent Obamacare subsidy case, King v. Burwell, even though she served as the U.S. Solicitor General and was intimately involved in the defense of the law. And like Ginsburg, Kagan’s comments and officiating at a same-sex marriage ceremony have called for her recusal from the same-sex marriage cases now pending before the Court. Justice Breyer has faced his own calls for recusal, based on potential financial conflicts.
The point is that while it may be a good idea for the Supreme Court voluntarily to adopt ethics rules for itself (which it de facto seems already to have done), I am highly skeptical about Congress imposing them, and the political mischief that could ensue. Indeed, liberals/progressives are already overtly attempting to bully the Court, calling for term limits (which, btw, would require a constitutional amendment), and generally calling for “reforms” of a Court they think is too conservative (and likely to stay that way for some time).
My hunch is that congressionally-imposed SCOTUS ethics rules would only further politicize the Court, which would not be good for the rule of law.
posted 4/25 Instapundit
Posted at 10:45 am by Elizabeth Price Foley 
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