Supreme Court Ethics and the Separation of Powers

Congressional efforts to establish an ethics code for United States Supreme Court justices raises separation of powers concerns. A considerable amount of misunderstanding surrounds the subject, though. The aim of this blog post is simply to clear up some of the confusion.

The Absolutist Position

Justice Alito has asserted that “No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court — period.”

I respectfully disagree.

Section 1 of Article III states: “Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” This suggests that Supreme Court justices are required, at least in theory, to abide by principles of ethical and/or moral conduct, and that the penalty for failing to do so is removal from office. The Constitution entrusts the removal power to Congress.

Of course, this leaves open the question whether it is for Congress or the Court to say what is and is not “good Behaviour.” Section 2 of Article III, however, gives us a clue. It says that the Supreme Court’s exercise of judicial power is subject to “such Exceptions, and under such Regulations as the Congress shall make.” (Emphasis added.)

That should be sufficient to settle the question. If not, there is also the Necessary and Proper clause (Article II, Section 8), which gives Congress power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

The “Absolutely No Problem” Position

On the other hand, the proposed Supreme Court Ethics, Recusal, and Transparency Act very likely could be a violation of separation of powers. Why? Because it would not be an enactment of regulations. Rather, it is written as a Congressional order to the Supreme Court to draft a code. It treats the Supreme Court as an administrative agency, even requiring the Court to establish a public comment period before enacting regulations.

Congress, not the Supreme Court, is the legislative branch of the government. Ordering another branch of government to perform powers that the Constitution does not reserve to it seems to me to be contrary to established separation of powers doctrine.

I believe former U.S. Court of Appeals judge J. Michael Luttig’s assessment is correct. He has opined that although the Constitution does not prohibit Congress from enacting a code of conduct to regulate the behavior of members of the Court, Congress does not have the constitutional authority to order the Court to enact regulations. Former constitutional law professor Laurence Tribe is of a similar mind. In view of the actual language set out in the Constitution, it seems clear to me that this is the proper interpretation.

The US Supreme Court’s Self-Regulation

Perhaps anticipating that Congress would act to impose a set of regulations on it if it did not enact one itself, the Supreme Court has created its own voluntary code of ethics now. It basically restates the Code of Conduct for U.S. Judges, with a few modifications intended to tailor it “to the Supreme Court’s placement at the head of a branch of our tripartite governmental structure.” (Commentary to the Code of Conduct for Justices of the Supreme Court of the United States.) You can read the full text of the Code here.

There is a big problem, though.

Enforcement?

The Supreme Court’s self-regulatory Code of Conduct does not explain who or how it is to be enforced. This has not escaped the attention of some members of Congress.

Impeachment is the enforcement mechanism the Constitution offers. Congress, however, has exercised the impeachment power against a U.S. Supreme Court justice only once. In 1804, the House impeached Supreme Court Justice Samual Chase on the basis that Chase allegedly had openly criticized the president and his policies to a Baltimore grand jury, thereby allegedly creating an appearance of political partisanship. The Senate, however, acquitted him.

Ever since then, Congress has declined to use the impeachment power to address alleged unethical conduct on the part of a Supreme Court justice. The prevailing view is that when it comes to the Justices of a co-equal branch of government, the impeachment power should be invoked sparingly, if ever. It seems that as many politicians understand the need for a judiciary that is independent of partisan political pressures as understand the strength of the temptation to abuse the impeachment process for political ends.

If impeachment is not a real option, though, then how else can the new Code be enforced? Take, for example, the ethical obligation of recusal. Codes of judicial ethics in all jurisdictions require judges to recuse themselves from cases in which they have a disqualifying interest. 28 U.S.C. Section 455 similarly mandates recusal for federal judges in specified circumstances. If a judge denies a party’s recusal request, the denial may be appealed to a higher court. The U.S. Supreme Court, however, is the highest court in the land. There is no higher one. To the extent a bill proposes having a judicial conference or committee establish a process for appealing a U.S. Supreme Court Justice’s denial of a recusal request, it is probably unconstitutional. The Constitution provides for only one court of last resort, the United States Supreme Court.

Congressional Oversight of Judicial Self-Regulation

Some members of Congress have intimated that the Court’s new Code is only a starting point. They seem to be assuming that they possess the power to alter, amend and create enforcement mechanisms for the new Code. But do they?

The constitutionality of such actions could come down to how they are worded. A bill to amend the Supreme Court’s own self-regulatory Code would be tantamount to an order directing the Court to take legislative action, namely, to amend its own Code. That would seem to me to create a risk of a separation of powers violation. If, instead, Congress were to incorporate the provisions of the Code (along with any changes they might desire to be made to it) into their own piece of legislation (such as a bill to define the meaning of “good Behaviour” for a U.S. Supreme Court justice), then I think a strong argument could be made for viewing the legislation as a necessary and proper exercise of legitimate Congressional power to regulate the Court — in a way that preserves the political independence of the judiciary.

The question then would be whether Congress has the constitutional authority to enforce such legislation by any means short of impeachment. If so, how will the political neutrality of such an enforcement mechanism be ensured?

Stay tuned.

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