Can Congress force the Supreme Court to create new ethics rules?

The Senate Judiciary Committee held a hearing to examine ethics at the Supreme Court as Democrats on the panel seek to pass legislation mandating the justices write a stricter code of ethics for themselves with “clear and enforceable rules.” The hearing led to debate as to whether the legislative branch of government could impose and enforce new rules on the separate but equal judicial branch. 

Arguments against congressional action 

Republicans brought in witnesses who cast doubt on Congress’ authority to enact such rules. 

“Compelling the court to adopt such a code or support or purporting to impose one legislatively would violate the principle of separation of powers and would also be unworkable. And as much as there were no there was no authority other than the justices themselves to apply such a code,” Former U.S. Attorney General and Former U.S. District Judge Michael B. Mukasey said. 

Arguments in favor 

Democrats said the court needs serious changes if it hopes to regain public trust.

A new poll by Navigator found that 44% of Americans have a favorable view of the Supreme Court. 

“The branches should have some separate spheres of conduct and some separate roles in our Constitution. But checks and balances is equally important,” Amanda Frost, research professor at University of Virginia School of Law, said. “The Supreme Court of the United States is constitutionally mandated under Article 3, but there is no detail about how it is to operate, because that was left to the Congress.”  

The politics

Republicans expressed frustration with recent media reports that have focused on conservative justices, like Clarence Thomas, accepting travel gifts or selling real estate to high-level political donors or people who have business before the court. 

Less publicized reports have shown nearly all justices, conservative and liberal, have accepted five-figure teaching positions at the nation’s top law schools.

The justices then chose to teach those classes in exotic vacation destinations like Italy and Iceland. The justices were reimbursed for the travel expenses. 

Justice Elena Kagan, the former dean of Harvard Law School, has helped the institution with fundraising since joining the court. 

“She’s raised a half a billion dollars for the law school. When she was dean, that’s sort of her job. After she left she has been trying to raise money for Harvard Law school. There’s a case involving Harvard before the court, she’s not gonna recuse herself. I’m not saying she should. I’m just saying there’s a very selective outrage here,” Sen. Lindsey Graham, R-S.C., said. 

Republicans said the current efforts to create new ethics rules aren’t about helping the court’s public perception, but are instead part of a decades-long effort to hurt Justice Thomas. 

Democrats have proposed multiple bills that would require the Supreme Court to follow disclosure guidelines similar to those for lower courts, members of Congress and federal employees. 

“Justices read the ethics rules in unique and eccentric ways. And when they’re caught out of bounds, they refuse to allow any investigation of the facts,” Sen. Sheldon Whitehouse, D-Rhode Island, said. 

Democrats on the Judiciary Committee hoped to hear from Chief Justice John Roberts during the hearing but he declined to appear citing separation of powers. All nine justices sent the committee a statement on ethics principles and practices, which they said would explain how they make ethics decisions and address misconceptions.

The documents can be viewed here.