[T]he [S]upreme [C]ourt . . . [will] have a right, independent of the legislature, to give a construction to the [C]onstitution and every part of it, and there is no power provided in this system to correct their construction . . . .1 Men placed in this situation will generally soon feel themselves independent of heaven itself.2
— Brutus
Starting in the spring of 2023 and continuing into the summer, media outlets reported that some Supreme Court Justices had received undisclosed gifts valued at hundreds of thousands of dollars from wealthy benefactors — and failed to recuse themselves when those benefactors’ matters went before the Court, or otherwise misused their positions and influence for personal gain. With each exposé, Supreme Court ethics gradually became a matter of public concern to a degree not seen since 1969 — when Justice Fortas resigned in a scandal over receiving $20,000 from a Wall Street financier.
These recent scandals have sparked discussion about the adequacy of existing ethical standards and financial disclosure rules for Supreme Court Justices, and how best to enforce them. The Court first responded to these discussions with claims, expressed both implicitly and explicitly, that any sort of ethics reform imposed by Congress would violate constitutionally required separation of powers principles. Then, in November 2023, the Court promulgated an ethics code that excused the Justices’ problematic conduct and included no enforcement mechanism, leaving the status quo largely intact.
Several of the open constitutional questions related to Supreme Court ethics reform are a result of Congress historically giving the Court a wide berth, and it is time to resolve those questions once and for all. This Chapter argues that constitutional challenges to Congress’s power to regulate the Court are vague, unavailing, and should not stop Congress from acting to enforce ethics standards on the Supreme Court. Congress has a variety of avenues it can and should take to regulate the extrajudicial behavior of Justices. Section A explores past and present movements for Supreme Court ethics reform. Section B provides an overview of the ethics guidelines that currently govern judicial conduct in the lower federal courts and, to an extent, at the Supreme Court. Section C contextualizes these lapses within a framework, espoused by the Court, that it is above regulation by Congress. Section D refutes that framework by examining the constitutional bases for Congress’s power to regulate Supreme Court ethics and provides ways in which Congress can act now, without waiting for future legislation.
A. Billionaires and Benefactors: The Past and Present of Supreme Court Ethics
Since its creation over two centuries ago, the Supreme Court has confronted a range of ethical dilemmas that persist to this day. Section 1 begins by examining the early years of the judiciary, which were marked by vague ethical obligations and the absence of clear boundaries for judicial conduct. Section 2 transitions into a discussion of recent Supreme Court ethics lapses. Section 3 addresses the significance of these ethical lapses and the necessity for ethics reform to restore confidence in the Supreme Court.
1. The History of Ethical Issues on the Court. — The Judiciary Act of 1789,3 which established the federal court system, only loosely addressed the ethical obligations of judges and Justices; the legislation simply required that judges and Justices take an oath to “do equal right to the poor and to the rich” and “faithfully and impartially” discharge the duties of the office.4 Then, in 1792, Congress enacted the nation’s first federal disqualification statute, which required judges to recuse themselves in cases where they had an interest in the proceeding.5
These efforts to impose boundaries on judicial conduct did little to constrain the next century and a half of political extrajudicial behavior by Supreme Court Justices. For example, in 1795, Chief Justice Jay ran for election as Governor of New York while serving as Chief Justice of the Court.6 Justice McLean was a presidential candidate, though he never won the nomination, in 1836, 1848, 1852, 1856, and 1860, all while serving on the Court.7 And, in 1868, Chief Justice Chase sought the presidency while serving as Chief Justice of the Court.8
The early 1920s saw a notable and surprising turning point for judicial ethics: a major league baseball scandal. A federal judge was appointed as the Commissioner of Baseball to address a 1919 incident of game fixing,9 leading the public to question whether one person could execute the duties of both offices while remaining faithful to the ethical obligations set forth in the Judiciary Act of 1789.10 The scandal spurred the American Bar Association (ABA) to form a commission on judicial ethics, headed by Chief Justice Taft,11 which in turn formulated the advisory Canons of Judicial Ethics (“the Canons”) in 1924.12 The Canons aimed to regulate all manner of extrajudicial activities from political activities13 to business promotions,14 but did not have any enforceable, legal effect over state or federal judges.15
The Canons’ lack of bite made them an ineffective stopgap for judicial misbehavior. After the Canons’ publication, Chief Justice Taft himself “rode roughshod over the [C]anons’ injunction against political activity”16 by remaining involved in the Republican Party, openly vocalizing support for political candidates, and advising sitting presidents on a broad range of topics.17 Justice Douglas routinely offered political advice to President Franklin D. Roosevelt18 and was nearly ousted from the Court for receiving a stipend from a nonprofit foundation.19
The 1960s brought with them controversies that catalyzed renewed efforts to reform ethics regulations. In 1968, Justice Fortas was not confirmed as Chief Justice after stirring controversy by advising President Lyndon B. Johnson on political matters and receiving $15,000 for speaking engagements.20 Though Justice Fortas remained on the Court, evidence of his receipt of outside income finally forced his resignation in 1969.21 Fortas’s resignation and society’s increasing focus on the (mis)conduct of public officials22 likely spurred the ABA to create the 1972 Code of Judicial Conduct.23 A year later, the Judicial Conference followed suit and adopted the Code of Conduct for United States Judges (“the Code”),24 which was functionally identical to the ABA’s code save for some slight modifications.25
Though the Code explicitly governs the conduct of lower court judges, it does not include Supreme Court Justices within its purview.26 Consequently, recent reform efforts have centered on the Supreme Court, particularly following the 2000 presidential election recount decision in Bush v. Gore.27 The late Justice Scalia’s hunting excursion with Vice President Cheney,28 whom Justice Scalia voted in favor of in Cheney v. United States District Court for the District of Columbia,29 elicited accusations of extrajudicial and politically motivated impropriety.30 The late Justice Ginsburg’s scathing critiques of then-presidential candidate Donald Trump drew similar public scrutiny.31
2. Recent Supreme Court Ethics Lapses. — The spring and summer of 2023 brought particularly jarring Supreme Court ethics lapses to the fore. This section provides a brief overview of 2023’s most widely reported Supreme Court ethics lapses and, consequently, focuses on Justices Thomas, Gorsuch, Alito, and Sotomayor.
(a) Justice Thomas. — On April 6, 2023, ProPublica revealed that Justice Thomas had joined billionaire Republican megadonor Harlan Crow on undisclosed luxury trips for more than two decades.32 These trips included flights on Crow’s private jet, vacations aboard his superyacht, and stays at his resorts.33 In fact, in only three decades on the Court, Justice Thomas was treated to at least thirty-eight destination vacations funded by a cadre of industry billionaires.34 He did not report any of these trips in the financial disclosures he filed each year.35
ProPublica also reported that in 2014, Crow paid Justice Thomas and his family $133,363 in exchange for three properties in Georgia, one of which was the house where the Justice’s mother lived and reportedly continued to reside as of April 2023.36 Crow also donated half a million dollars to a conservative political organization founded by Justice Thomas’s wife37 and paid for the private school education of Justice Thomas’s grandnephew.38 The New York Times also revealed that Justice Thomas failed to repay a “significant portion” of a quarter of a million dollar loan from wealthy businessman Anthony Welters.39 The loan was inexplicably forgiven nine years later.40
Some ethics law experts say that these failures to report were clear violations of the Ethics in Government Act of 197841 (EGA), which was intended to apply to all federal officials and requires disclosure of both real estate transactions and most gifts.42
(b) Justice Gorsuch. — On April 25, 2023, Politico reported that in 2017, Justice Gorsuch sold a forty-acre property to Brian Duffy, the chief executive of major law firm Greenberg Traurig.43 Justice Gorsuch’s property had languished on the market for two years before finally being purchased just nine days after his appointment to the bench.44 Justice Gorsuch made between $250,001 and $500,000 from the sale, according to federal disclosure forms.45
Though Justice Gorsuch reported the sale on his federal disclosure forms, he failed to disclose the identity of the land’s purchaser and left that box on the form blank.46 After the sale, Greenberg Traurig was involved, as either an amicus brief filer or representative counsel, in at least twenty-two cases that came before or were presented to the Court; Justice Gorsuch sided with the firm at least eight times.47 While Justice Gorsuch’s property sale may not be a clear violation of existing ethics laws, the conflict of interest presented by the transaction underscores the need for financial disclosure reform for Supreme Court Justices.48
(c) Justice Alito. — On June 20, 2023, ProPublica reported that in 2008, Justice Alito took a luxury fishing trip to a remote corner of Alaska and stayed at the King Salmon Lodge.49 He flew to the lodge for free aboard a private jet owned by Republican megadonor Paul Singer.50 His three-day stay was paid for in full by Robin Arkley II, another wealthy conservative donor.51 Leonard Leo, the then-leader of the conservative legal group the Federalist Society, helped organize the fishing vacation and arranged Justice Alito’s spot aboard Singer’s jet.52 Justice Alito failed to disclose the entire excursion in his end-of-year federal disclosure forms.53 Justice Alito also did not recuse himself from reviewing the numerous cases involving Singer’s hedge fund that came before the Court after his Alaska trip.54
(d) Justice Sotomayor. — On July 11, 2023, the Associated Press revealed that taxpayer-funded staffers of Justice Sotomayor routinely prodded public institutions to buy “hundreds, sometimes thousands” of copies of Justice Sotomayor’s books in anticipation of the Justice’s speaking engagements.55 These mass purchases were often presented by staffers as the implicit price of a speaking appearance by Justice Sotomayor.56 Such conduct is prohibited for members of Congress and the executive branch, who are statutorily barred from using government resources, such as their staffers, for personal financial gain.57 Such conduct also plainly violates the Code of Conduct for United States Judges, which prohibits the substantial use of “chambers, resources, or staff” to further such private interests.58
Additionally, when the Court considered several cases that involved her publisher, Penguin Random House, Justice Sotomayor failed to recuse herself.59 Though the Justice had no direct financial interest in the outcome of the Penguin Random House cases, her continuing receipt of royalties from the company likely merited disqualification because her “impartiality might reasonably be questioned.”60
3. Judicial Ethics and Public Confidence. — Efforts to downplay these lapses in ethical conduct have taken several forms. Justice Thomas’s attorney, Elliot S. Berke, decried news reports of the Justice’s behavior as “political blood sport . . . motivated by hatred for his judicial philosophy, not by any real belief in any ethical lapses.”61 Conservative pundits such as the Heritage Foundation’s Thomas Jipping have expanded the charge of partisan witch hunt to include the Court as a whole, calling the Left’s hand-wringing over Court conduct a “smokescreen” and “misdirection” driven by those who consider the Court’s “independence an obstacle to be overcome.”62
However, recent Supreme Court ethics reform proposals would apply to all Supreme Court Justices, no matter which party’s President appointed them. Increased transparency would allow the Court to subvert any anticonservative narratives perpetuated by the media and ensure an unbiased account of all Justices’ activities and ethics breaches. And most importantly, ethics reform would create guardrails for the institution itself and reinstate public confidence. Though some change has finally come from within the Court,63 that change is insufficient to properly address the recent problematic conduct of several Justices, and Congress must create enforceable ethics rules for the Justices to follow.
B. Current and Proposed Ethics Rules
This section begins by delving into the intricacies of existing judicial ethics statutes and their applicability to the federal judiciary, with a focus on the Supreme Court. Section 2 discusses the Court’s responses to external judicial ethics reform efforts. Section 3 concludes by examining the Court’s new Code of Conduct. This section aims to underscore the urgent need for Congress to establish a formal, enforceable code of ethics for the Supreme Court.
1. Ethics Regulations in the Federal Judiciary. — As mentioned previously,64 the Code of Conduct for United States Judges provides guidance on a broad range of judicial conduct; for example, it advises judges to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”65 Though the Code applies to most lower-level judges, it does not explicitly apply to Justices of the U.S. Supreme Court.66
In 2011, Chief Justice Roberts assured the public that members of the Court “do in fact consult [the Code] in assessing their ethical obligations.”67 He noted that the Justices also have several avenues in addition to the Code at their disposal, including the Judicial Conference’s Committee on Codes of Conduct, the Court’s Legal Office, and their fellow Justices.68 They may also turn to “judicial opinions, treatises, scholarly articles, and disciplinary decisions.”69 Thus, said Chief Justice Roberts, “the Court has had no reason to adopt the Code of Conduct as its definitive source of ethical guidance.”70 However, like other federal judges, the Court’s consultation of the Code is voluntary.71 And in his 2011 report, Chief Justice Roberts was careful to note that while the Justices complied with Congress’s requirements pertaining to financial reporting and limitations on the receipt of gifts and outside earned income, Congress’s constitutional authority to include the Justices in those laws had never actually been established.72
Outside of the Code, some statutes impose ethical requirements on the Justices. For example, 28 U.S.C. § 455 requires all federal judges, including Supreme Court Justices, to recuse themselves from cases under particular circumstances such as when they “ha[ve] a personal bias or prejudice concerning a party”73 or “a financial interest in the subject matter in controversy.”74 Congress, through the Ethics in Government Act of 1978 and the Ethics Reform Act of 1989,75 also directs high-ranking officials in all three branches to file annual financial disclosure reports and observe limits on the acceptance of gifts.76 The Judicial Conference has also issued regulations concerning statutory reporting77 and gift acceptance.78 Chief Justice Roberts has noted that the Court voluntarily complies with these laws.79
Unfortunately, these ethics rules are rife with ambiguities. Though the Judicial Conference recently clarified that “transportation that substitutes for commercial transportation,” such as private jet rides, must be disclosed under the Ethics Reform Act of 1989, that rule does not apply to stays at luxurious resorts due to the Act’s “personal hospitality” exemption.80 Further, there is no limit on how much “personal hospitality” wealthy benefactors can lavish upon a Justice, all of which can legally go undisclosed today.81
Additionally, 28 U.S.C. § 455 does not provide a clear enforcement mechanism to challenge a Justice’s failure to recuse, giving each Justice leeway to decide whether they will recuse themselves from a particular case. While most federal judges’ failure to recuse in response to a motion or sua sponte is appealable,82 there is no appellate court with the power to assess a Supreme Court Justice’s failure to recuse.83 Thus, the Justices’ recusal decisions are almost always made without public explanation and are unreviewable.84
2. The Court’s Reactions to Ethics Reform. — On April 20, 2023, Senator Richard Durbin, Chairman of the Senate Judiciary Committee, sent a letter to Chief Justice Roberts, inviting him or one of his fellow Justices to testify before a panel considering changes to current ethics rules.85 “The time has come for a new public conversation on ways to restore confidence in the Court’s ethical standards,” Senator Durbin wrote, “I invite you to join it, and I look forward to your response.”86
Five days later, Chief Justice Roberts sent a letter to the committee declining its invitation.87 Chief Justice Roberts wrote that such appearances by a Chief Justice before Congress were “exceedingly rare, as one might expect in light of separation-of-powers concerns and the importance of preserving judicial independence.”88 Chief Justice Roberts affixed to the letter a “Statement on Ethics Principles and Practices” signed by all nine Justices and to which, he said, “all of the current Members of the Supreme Court subscribe.”89
Chief Justice Roberts’s message was clear: the existing guidance around gifts, travel, and other financial disclosures was sufficient and need not be changed. Senator Durbin publicly rejected the Chief Justice’s reasoning for refusing to testify.90 First, while a Chief Justice testifying before the Senate Judiciary Committee has only occurred twice, sitting Justices of the Court have appeared at ninety-three congressional hearings since 1960.91 In fact, in 2019, Justice Kagan testified at a congressional hearing where she revealed that the Supreme Court was looking into adopting a judicial code of conduct at that time.92 Second, the Chief Justice’s letter ignored the obvious: the flurry of reports throughout early 2023 demonstrated, quite publicly, that the Justices hadn’t adhered to existing ethics laws and standards.
Most troubling, however, was Chief Justice Roberts’s assertion that testifying before Congress would implicate judicial independence and the separation-of-powers doctrine.93 He made a similar claim in his 2011 year-end report on the state of the federal judiciary, writing that Article III of the Constitution established “only one court” and left the rest of the judiciary to Congress.94 And in 2012, Chief Justice Roberts rejected95 calls from the judiciary committee96 to adopt a binding ethics code after it was revealed that Justice Thomas failed to disclose years’ worth of his wife’s income from various political employers.97
In July 2023, Justice Alito echoed the Chief Justice. Responding to proposed legislation requiring the Court to adopt a binding code of ethics, Justice Alito remarked, “‘Congress did not create the Supreme Court’ — the Constitution did.”98 “No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court — period.”99
In other words, “[t]he court checks . . . but cannot be checked.”100 As Senator Durbin wrote in response to Chief Justice Roberts’s refusal to testify, “[i]t is time for Congress to accept its responsibility to establish an enforceable code of ethics for the Supreme Court, the only agency of our government without it.”101
3. The Court’s Code of Ethics. — On November 13, 2023, the Court released its first code of ethics governing the behavior of its members.102 In it, the Court could have acknowledged the gravity of its recent financial and political scandals and positioned the new Code of Conduct as part of a larger, ongoing internal reform effort. Instead, the Justices wrote in a brief introduction that “[t]he absence of a Code . . . has led in recent years to the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules.”103 Further, despite recent reports of arguably unethical conduct, the Court’s statement assured the public that the rules and principles within the Code were “not new” and “largely represent[] a codification of principles that [it] ha[d] long regarded as governing [its] conduct.”104
The nine-page Code of Conduct echoes the code that applies to lower court judges, with some notable differences. For instance, lower court judges are told not to “lend the prestige of the judicial office to advance the[ir] private interests.”105 The Justices are merely advised not to do so “knowingly,”106 a loophole that may swallow the rule. The Code spells out some restrictions on the Justices’ participation in fundraising,107 reiterates requirements to file disclosure reports and limit gift acceptance consistent with the relevant statutes and regulations,108 and states that the “Justice[s] should not participate in extrajudicial activities that detract from the dignity of the Justice’s office, interfere with the performance of the Justice’s official duties, reflect adversely on the Justice’s impartiality, [or] lead to frequent disqualification.”109
The main difference between the Court’s Code and the one that applies to lower court judges is its treatment of recusal. The Commentary accompanying the Code explains that the Justices must be warier of recusing themselves because they cannot be replaced when they do.110 Thus, the Commentary explains that the Code’s provision on recusal “should be construed narrowly.”111
One would think that an ethics code promulgated due to public pressure would advise against the unethical conduct that spurred the uproar, but not so with this Code of Conduct. For example, on the matter of outside influences on the Justices, the Code states that “[a] Justice should not allow family, social, political, financial, or other relationships to influence official conduct or judgment” and should “neither knowingly lend the prestige of the judicial office to advance the private interests of the Justice or others nor knowingly convey or permit others to convey the impression that they are in a special position to influence the Justice.”112 Would this rule have stopped Justices Thomas and Alito from maintaining relationships with billionaire donors? The rules suggest that, as long as Justices claim not to be “influenced” by their moneyed connections or “knowingly” give the impression they are, there is no ethical violation. Without an enforcement mechanism to determine when such relationships have gone too far, the scandals of last summer are free to repeat themselves under the new Code.
The Court’s Code of Conduct is still meaningful. It signals that the Justices recognize some obligation to communicate with and appease the American people. It signals that public pressure works, even on powerful institutions that are, by design, insulated from public pressure. It is an act of public accountability, symbolic though it may be. And, frankly, it’s better than nothing.
However, the Code’s lack of an enforcement mechanism leaves the bottom line where it has always been: Who will judge the Justices? Who will ensure that the Code’s rules are followed? As Professor Stephen Vladeck argues: “Even the most stringent and aggressive ethics rules don’t mean all that much if there’s no mechanism for enforcing them. And the [J]ustices’ unwillingness to even nod toward that difficulty kicks the ball squarely back into Congress’ court.”113
C. Enforcement
Even if one concedes that ideally the Supreme Court Justices should follow an ethics code, such a code does not explain what happens when a Justice commits potential misconduct. The simplest measure would be the Supreme Court’s self-imposition of an ethics code that outlines sanctions for violations of its standards, essentially a self-enforcing code. As outlined above, the American Bar Association,114 advocacy groups,115 legal scholars,116 and even former lower court judges117 urged the Supreme Court to adopt its own code, resulting in the November 13, 2023 announcement.118 However, the difficulty the nine had in finding consensus119 seems clear in the promulgated Code, which does not actually condemn any of the conduct questioned by the public, Congress, and former judges.120 The Justices’ Code is also not binding, both because it leaves determinations of propriety entirely up to individual Justices and because it does not outline any mechanism for enforcing the code or sanctioning misconduct.121 Since the Court has not bound itself to any ethical standards, protectors of the Court’s legitimacy should look to enforcement by another branch.
Any enforcement plan must first ask: Who could pass judgment on the behavior of the nation’s highest adjudicators? The very structure of the three branches of the federal government may pose a problem for enforcement. Life tenure and salary protections ensure the Justices’ “independence to best interpret the law by shielding their judgments from outside political pressures.”122 This insulation is necessary to ensure that the Court can properly evaluate legislation and executive action without fear of retribution. However, it also means that Congress and the Executive must tread carefully in wading into ethics, lest regulation of nonjudicial behavior should infringe upon that judicial independence.
Despite these structural protections, Congress frequently regulates the Supreme Court. Few question Congress’s authority to circumscribe the Court’s appellate jurisdiction, set its budget and length of session, and even expand or contract (upon death or retirement) the number of Justices. This section argues that Congress is in the best position to impose some ethical standards on the Court.
Many, including a number of the Justices themselves, advocate for self-regulation by the Supreme Court and reject all potential enforcement mechanisms by another body as unconstitutional.123 However, whether Congress can regulate the behavior of the Justices is an open constitutional question,124 and history and current practice both imply that Congress has the constitutional authority to do so. This section first addresses Congress’s general power to regulate the Supreme Court and why, despite statements by the Justices, this power is constitutionally valid. Enforcement mechanisms can be broadly divided into two categories. In the first, Congress acts as a direct enforcer of ethical standards. In the second, Congress deputizes some other body with oversight over the nonjudicial conduct of Justices. Looking to state court systems shows how lower court judges may also serve a role in policing the conduct of the Justices. This section argues that Congress has several constitutional paths to act on Supreme Court ethics reform.
1. Congressional Power to Regulate Justices’ Behavior. — This section argues that the congressional power to regulate the extrajudicial behavior of Supreme Court Justices is at worst constitutionally unclear and at best textually supported. It first addresses the vague arguments raised by opponents of congressional regulation — including some of the Justices themselves — and concludes that those arguments lack clear constitutional reasoning and are ultimately unavailing. Instead, the Necessary and Proper Clause and historical practice provide a clear, textual constitutional argument that Congress may regulate the conduct of individual Justices.
(a) Separation of Powers. — Some argue that the separation of powers implied in the Constitution disables Congress from enforcing any kind of legislation regarding Supreme Court ethics.125 However, given the above-mentioned constitutional structure, Congress has asserted some level of input in the day-to-day functions of the Court, from the very mundane details all the way to foundational, structural issues.126 Ethics do not present some never-before-seen threat to the independence of the judiciary. In fact, the Court has mostly complied with ethics-related statutes, gesturing at its constitutional insulation from them but adhering nonetheless.127
Admittedly, enforcing any kind of sanction for an ethical violation is a relatively new proposition for Congress. However, at core, the separation of powers principle protects judicial independence,128 which is not necessarily implicated in ethics enforcement. Congress’s focus on extrajudicial ethical violations and issues related to recusal is part and parcel of ensuring judicial legitimacy and the proper functioning of statutes meant to protect that legitimacy. Many separation of powers critiques may arise from this normative view of the congressional role based on the structure of the Constitution.129 Chief Justice Roberts and Justice Alito, who have commented most directly on the subject, have not illuminated the constitutional reasoning for their conclusions.130 While this kind of pronouncement has weight, Congress need not accept it as binding constitutional law. The separation of powers principle may even benefit from Congress pushing forward some kind of ethics regulation, encouraging the Court either to accept such regulation or to articulate firm separation of powers grounds for rejecting it.
(b) Status of the Court. — Justices and other opponents of congressional ethics enforcement cite the special status of the Supreme Court as a constitutionally created body, in contrast to lower federal courts, which are created by Congress.131 However, as a constitutional matter, Justices as individuals are treated the same as other Article III judges. All Article III judges have tenure and salary protections guaranteed by the Constitution.132 The fact of constitutional creation does not put Justices’ extrajudicial behavior beyond the reach of legislative regulation, particularly with regard to actions taken as individuals, such as engaging in political activity or receiving gifts.
Recusal is the only category of ethics regulation that touches on judicial decisionmaking. The status question is more difficult to answer here, but again does not weigh against the congressional power to guard against a runaway Court. Although recusal violations require careful consideration and raise questions of constitutional legitimacy, no clear answer has emerged from the history and text of the Constitution.133 This difficulty only speaks to the relative political expediency of increased enforcement of acts regulating extrajudicial activities of the Justices.
(c) Legitimacy of the Court. — Opponents of congressional intervention rightfully note that Congress and the Court are coequal branches of government.134 While that is true, Congress is better situated to navigate the quagmire of ethics violations and plummeting public trust that the Court has created. Congressional action is first more legitimate in the eyes of the public, given the perception of the Court as failing to police itself,135 and second “offer[s] greater possibilities for coordinated efforts between the two Branches.”136 Congress needs to begin enforcing these ethics statutes to begin the process of shaping this constitutional gray area.137 The legislature has the power to act upon its interpretations of the Constitution,138 and while regulation of ethics is sensitive, that does not mean that Congress should abdicate its normal duties.
(d) The Necessary and Proper Clause. — Given the above general constitutional arguments, the Constitution provides a textual “hook” for this congressional power to regulate in the Necessary and Proper Clause. The Constitution establishes the Supreme Court in sparse language in Article III, leaving many of the details to be filled in (or not) by Congress.139 These gaps in Article III, which include foundational questions such as the size of the Court, the processes by which it hears cases, and the scope of its appellate jurisdiction, all underscore the congressional role in establishing and regulating the Court.140 Congress has exercised this Necessary and Proper authority by expanding and contracting the size of the Court, establishing and adjusting procedural rules, and even regulating the oath that Justices take when assuming office.141 Scholars have noted that, in contrast to Article III, Article I of the Constitution establishes detailed procedural rules for the legislative branch,142 implying that Congress was not only empowered but “perhaps even obligated” to establish governing rules for the Supreme Court.143
These noticeable gaps in Article III, when paired with the Necessary and Proper Clause of Article I, “confirm[] this perception of congressional primacy by empowering Congress to make[] laws necessary and proper for carrying into execution the powers vested in the judicial department.”144 Using the Necessary and Proper Clause in combination with some of the below powers, Congress can act today to enforce existing ethical rules, rather than attempt to empower itself via new legislation. The constitutional structure explains why Congress could act and why its previous legislation, including acts requiring financial disclosures and barring outside income and gifts, validly applies to the Court.
2. Enforcement Directly by Congress. — “The non-judicial conduct and activities of the Supreme Court are subject to law, just like every other citizen’s conduct and activities are subject to the law. Much of the Justices’ non-judicial conduct and activities are of course subject to law today.”145 The Code of Conduct for United States Judges, which applies to the lower federal courts, is not technically “binding” on them because it itself is merely advisory.146 While a valuable resource, it cannot be the final answer to these ethical questions because, by definition, it has no teeth.147 Additionally, the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980148 (Judicial Conduct Act) offers an avenue for nearly anyone to file a complaint against a federal judge who “has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts.”149 However, this statute also does not reach the Justices of the Supreme Court.150 While expanding both the Code and the Judicial Conduct Act, as well as potentially establishing a new Inspector General for the Supreme Court151 are promising steps, this section instead focuses on ways that Congress can require the ethical adherence of the Justices today.
In the most extreme case, Congress can impeach a Justice for misconduct. Equally extreme would be the withholding of appropriations, which could have some major repercussions for the continued functioning of the judicial branch. Finally, Congress could look to extant statutes for ways to enforce ethical standards.
(a) Impeachment. — Congress is authorized to impeach a Supreme Court Justice.152 This power cuts both ways in evaluating what Congress can do in the face of an unethical Justice. On one hand, this constitutional backstop evinces the Framers’ intent to ensure that the legislative branch retained some control in the face of tenure and salary guarantees. On the other hand, the authority to impeach may, by implication, exclude any other authority to discipline.153 However, the impeachment power cannot be the only regulation of Justices, given that other limits still apply to their behavior, including criminal law.
In practice, “no Supreme Court [J]ustice has ever been [successfully] impeached and removed by Congress.”154 While some may argue that the threat of impeachment changes Justices’ behavior, impeachment practically cannot be the only mechanism for Congress to regulate Article III judges, given the incredibly high bar for starting and completing impeachment proceedings.155
Some argue that impeachment is the only mechanism by which Congress can regulate the Supreme Court, to the exclusion of other statutes, even criminal ones.156 However, several federal appellate courts have concluded that a federal judge may be prosecuted without first being impeached.157 In 1795, the House of Representatives declined to impeach Judge George Turner after the Attorney General decided to prosecute him, providing Founding-era evidence that the existence of the impeachment procedure does not bar other laws, such as the criminal code, from reaching federal judges.158
Impeachment is a blunt tool for Congress in attempting to enforce ethical rules at the Court. Despite its bluntness, it has a strong basis in the Constitution, thus offering a legitimate toehold for Congress to enter the fray. However, given the polarization in the legislature, the difficulty of impeachment proceedings, and the post-hoc nature of the remedy, it does not offer the most practical avenue for ethics regulation.159
(b) Appropriations. — Using its power of the purse, Congress could sanction and deter violations of ethical rules by the Supreme Court Justices. The Senate Appropriations subcommittee that oversees the Court’s budget has recently evaluated its options in approving the Court’s budget for 2024.160 Senator Chris Van Hollen has proposed that the Senate can leverage the appropriations process for the Court’s budget to force the Court to bind itself to ethical standards.161
This issue is still politically live, but it does offer an avenue for immediate action to punish previous violations of the Ethics Reform Act of 1989 and the Ethics in Government Act of 1978, among others. However, the appropriations power is a similarly blunt instrument that does run the risk of compromising the Court’s ability to function at all.
(c) Enforcement of Extant Statutes. —
(i) Ethics in Government Act. — The Ethics in Government Act applies to all three branches of the federal government, setting rules related to outside income and employment, gifts, and financial disclosure requirements.162 Chief Justice Roberts is authorized, via the Judicial Conference, to issue regulations specifically for the Court.163 While he does so, and while the Justices do submit financial disclosures yearly as required by statute, he has stated that the Justices follow the EGA “as a matter of internal practice” and cautioned that the Court has yet to rule on the regulations’ legal applicability to itself.164 It is worth examining what could result from Congress declaring the EGA applicable to the Court, as well as the specific enforcement mechanisms Congress might use to ensure compliance.
The Court does not need to have the first word on the applicability of the EGA to itself — Congress can today declare that the EGA does bind the Justices. The resulting constitutional showdown would arguably address the ethical crisis at the Court, no matter the outcome. Ideally, the Court would simply accept Congress’s interpretation. A constitutional question would be answered, and the move might restore some faith in the Court. Alternatively, the Court could explicitly reject Congress’s interpretation. However, this result seems unlikely as the Court would not reach the constitutionality of this interpretation unless an enforcement action or other case or controversy were brought before it. In the unlikely scenario that the Court rejects any application of the EGA to itself, the issue around ethics crystallizes. There is value to forcing the Court to firmly stake a position, rather than make statements to news outlets or vague allusions in the Year-End reports.165
In either of these two scenarios, Congress must act first. Under the EGA, judicial officers who “willfully fail to file or falsify their financial disclosure statements are subject to referral to the Attorney General and may face civil penalties.”166 While many disagree as to whether individual Justices’ behavior meets the “willful” standard for referral,167 a public referral to the Attorney General is a powerful enforcement action and does not require an intense investigation by Congress on the merits. By viewing enforcement as merely a publicized referral, rather than the civil penalties themselves, applying the EGA to the Justices is likely more politically palatable.
As a general matter, violations of the EGA by any government official, which include “knowingly and willfully falsif[ying]” or “knowingly and willfully fail[ing] to file or report any information that such individual is required to report,” are enforceable by civil action brought by the Attorney General.168 The Attorney General, upon referral, may bring this civil action in “any appropriate United States district court.”169 The court in which the civil action is brought can assess a civil penalty, with the maximum possible penalty being $50,000.170 In the alternative or in addition to fines, the violator might even face incarceration for up to one year for “knowingly and willfully falsify[ing] . . . information.”171
In practice, bringing an enforcement action after a violation of the EGA by a Justice would be tricky, given not only the concerns raised above, but also the role of the Judicial Conference in enforcing the EGA. The EGA states that the Judicial Conference is the correct body to refer potential violations to the Attorney General.172 The Judicial Conference has established a Committee on Financial Disclosure, “consisting of [sixteen] judges from across the country,” which reports to the broader Conference.173 The Conference has delegated authority to the Committee “with respect to the implementation of the financial disclosure provisions of the Ethics in Government Act, including reviewing financial disclosure reports and referring matters to the Attorney General. Allegations of financial disclosure errors or omissions submitted to the Conference are referred to the Committee for review and appropriate action.”174 The Judicial Conference has rarely initiated proceedings against lower court federal judges175 and has never referred a filer for “willingly falsifying” or withholding necessary disclosures.176
However, Congress does not have to wait idly. Senator Sheldon Whitehouse and Representative Henry C. Johnson have written publicly to the Conference requesting that the Committee refer Justice Thomas to the Attorney General for violating the EGA.177 The Senate Judiciary Committee as a whole could make a statement and add more pressure to the Conference. Although it is unlikely that an actual referral would be made to the Attorney General and unlikelier still that the Attorney General would act against a sitting Supreme Court Justice, there is value in the Senate Judiciary Committee (or any congressional body, for that matter) making a public statement about the enforceability of the EGA. Given the utter lack of clarity on the constitutional reasons against congressional intervention, a statement from Congress could spur the Court (or particular members) to outline its reasoning and further the constitutional law in this area. Current congressional silence on the statute’s constitutionality begets further silence from the Court.
(ii) Disqualification Statutes. — There are several disqualification statutes currently on the books, which do apply to the Supreme Court
Justices.178 28 U.S.C. § 455, which has its roots in the late eighteenth century,179 requires that any judge or Justice recuse herself in a variety of circumstances, including most notably in cases of personal bias toward a party or a financial interest in the matter.180
While there have been accusations that many Justices have already violated this statute, Congress likely lacks constitutional authority to regulate the Supreme Court’s decisions in this area because the decisions are more inherently judicial than say, vacation plans or real estate transactions.181 Instead, Professor Louis Virelli argues that Congress needs to exert pressure using other powers (including investigations, appropriations, and other clear areas of constitutional authority) and thus influence the Court to improve its recusal practices.182 While issues of recusal gain public notoriety, Congress should not lose sight of where it has the strongest constitutional footing to act.
3. Deputizing Lower-Level Federal Judges. — The regulation of state supreme courts offers some insight into how the Supreme Court would function under some form of ethical oversight.183 Many states have an independent agency that enforces its binding judicial ethics code on not only lower court judges, but also state supreme court justices.184 These commissions have the power to impose a range of sanctions, including removal from office.185
While these agencies are not direct outgrowths of the states’ respective legislatures, but rather sit within the judiciary,186 they offer insight into how supreme courts can function under binding ethics regulation and enforcement. Justice Alito has stated “that it is inconsistent with the constitutional structure for lower court judges to be reviewing things done by Supreme Court Justices for compliance with ethical rules.”187 Justice Kennedy similarly implied that such a structure, where lower court judges would have a say in the ethical codes of the Justices, would violate the Constitution.188 However, neither has offered any constitutional support for this position. There are no separation of powers concerns raised by lower court judges weighing in on ethical standards. While unorthodox at the federal level, trial and appellate judges weigh in on nonjudicial standards in many states, whose constitutional orders have not yet crumbled. Given the legitimacy crisis facing the Court, and if the Justices remain averse to direct congressional oversight, allowing the other Article III judges to weigh in on standards (and whether behavior violates those standards) offers a possible middle ground for ethics regulation.
Conclusion
Today’s ethics problems are symptomatic of a Court that has ridden roughshod over any attempt to cabin its power.189 Enforcement of ethical rules at the Supreme Court cannot wait on the Justices, nor should it wait on future legislation. The Court is not the only institution tasked with interpreting the Constitution. The Executive regularly makes constitutional determinations in exercising its power to take care that the laws are faithfully enforced. Congress is faced with a constitutional question every time it legislates. An impending constitutional question does not require inaction — if anything, it encourages action to spur its resolution.190 While potential legislation is being debated,191 Congress can act now based on its own interpretation of the Constitution and the multitude of avenues it has to check the extrajudicial behavior of the Justices. Starting the conversation between Congress and the Justices is the most viable way to restore the damaged legitimacy of this Court.