Congress Has Constitutional Power to Set Enforceable Ethics Rules for the Supreme Court

City Bar Proposes Reforms

In a report released today, the New York City Bar Association asserts that Congress has the Constitutional authority to enact binding and enforceable ethics rules for the U.S. Supreme Court, and endorses the creation of a Judicial Investigation Panel and an Office of the Inspector General for the Supreme Court.

Noting the lack of an enforcement mechanism in the voluntary Code of Conduct announced in 2023, and listing recent revelations of repeated noncompliance with ethics rules by Justices that have pushed public confidence in the Court to a historic low, the City Bar urges Congress to assert its authority to set enforceable ethical guardrails on Justices’ behavior. “The need for Supreme Court Justices to comply with the highest ethical standards is a nonpartisan issue because, as the Supreme Court itself has emphasized, public confidence in the integrity and neutrality of the courts is a bedrock principle of the rule of law,” the City Bar writes.

While Chief Justice John Roberts in 2011 cast doubt on the Court’s willingness to accept ethical requirements Congress imposes by law, writing “[t]he Court has never addressed whether Congress may impose those requirements on the Supreme Court,” the City Bar asserts that Congress’ power to act comes from three provisions in the Constitution: Article I’s Necessary and Proper Clause, Article II’s impeachment provision, and Article III’s provision that a judge may remain in office only during “good Behaviour.”

As described in the report, the clearest basis for congressional authority to enact a binding ethics code for the Supreme Court is the Necessary and Proper Clause, which states that “The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing [legislative] Powers [enumerated in Article I], and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

This provision expressly authorizes Congress to make laws to implement the coordinate branches’ powers. As the City Bar notes, the Supreme Court has interpreted the Necessary and Proper Clause broadly, including in cases involving legislation related to the operation of the Court. “For this reason and others, we are persuaded that the Necessary and Proper Clause authorizes legislative enactment of ethics rules for the Supreme Court to help “carry[] into Execution” both the Court’s judicial power and [] Congress’ legislative power.”

According to the City Bar, an additional source of congressional power to enact a binding and enforceable Supreme Court ethics code arises from the Impeachment Clause and the Good Behavior Clause. As the report states, the impeachment power is “in some respects, a more important power [than Congress’ power under the Necessary and Proper Clause] for it lies at the heart of our system of checks and balances.” To ensure judicial independence, Federal judges are afforded life tenure, and their salaries cannot be reduced while they are in office. The only checks on their behavior come from these two provisions in the Constitution: they are entitled to “hold their Offices during good Behaviour” and can only be removed by impeachment for “high Crimes and Misdemeanors.” Congress’ power to define what “good behavior” is and its power to impeach are an additional constitutional basis authorizing it to enact a binding Supreme Court ethics code.

The report stresses that the “separation of powers” does not prevent Congress from enacting such a code because “[a] judicial ethics code enacted by Congress but enforced by the judicial branch, as we propose, simply implements the checks and balances that lie at the core of our constitutional system.” Neutral rules applied neutrally would not interfere with the Court’s decisional independence or undermine the structure of the three separate branches of government established by the Constitution. “[A]ny conception of the separation of powers as requiring the three branches of government to be completely independent misperceives the interdependent system of government created by our Constitution,” the City Bar writes, adding that “without Congress exercising its constitutional powers, the Supreme Court would have no funding and no defined appellate jurisdiction.”

The City Bar’s recommendations include the creation of a Judicial Investigation Panel composed of five federal judges, a reform recently suggested by Justice Kagan, and the creation of an Office of the Inspector General (OIG) within the Supreme Court itself, a bipartisan proposal first advocated by Senator Grassley a decade ago. The Judicial Investigation Panel would screen complaints to identify those meriting investigation by the OIG, which would then report back to the Judicial Investigation Panel, which would rule on any potential ethical violations.

On the issue of recusal, the City Bar writes, “A Justice can decide to recuse by him or herself but cannot decide alone to decline a properly presented request for recusal.” The City Bar’s recusal proposal is based on the fundamental, common-law principle that “no man should be the judge in his own case” and is modeled on legislation proposed by Senator Whitehouse. It authorizes the OIG to investigate the facts when a suggestion of recusal is raised, either through a complaint to the Judicial Investigation Panel or on a motion for recusal made to the Court. To minimize the risk of internal tensions on the Court, the Panel’s decision would become final after 30 days unless disinterested members of the Supreme Court elect to have the final word.

The report concludes, “There has been an erosion of confidence in the Supreme Court and doubt has grown about whether it complies with the ordinary rules of ethical behavior that apply to other judges …. We would, of course, welcome having the Court itself meaningfully address the continuing need for Supreme Court ethics reform. Unfortunately, the voluntary and unenforceable 2023 Code makes clear that at least some of the Justices feel free to ignore the laws already passed by Congress to regulate their ethical obligations. That is in our view a counterproductive course for an institution that needs both public respect and the funding that Congress provides. It is time for Congress to act to reassert its primary law-making role and to guarantee that the Justices of our highest Court exhibit the ‘good behavior’ that the Constitution requires of all of them as a condition for remaining in office.”

Read the report here: https://bit.ly/4eKxcW1

About the Association
The mission of the New York City Bar Association, which was founded in 1870 and has 23,000 members, is to equip and mobilize a diverse legal profession to practice with excellence, promote reform of the law, and uphold the rule of law and access to justice in support of a fair society and the public interest in our community, our nation, and throughout the world. www.nycbar.org