If House Democrats have their way, politicians will soon be setting the rules by which justices are judged. That possibility emerged during an acrimonious 22-to-16 party-line vote in the Judiciary Committee that forwarded a judicial ethics bill to the full lower chamber. 

The proposed legislation would renovate the rules governing all federal judges and attempt to impose, for the first time, a code of conduct on the Nine. It would touch on everything from disclosures relating to amicus briefs to outside income and perks to recusal procedures and rules governing law clerks.

A prior House subcommittee hearing, the Hill newspaper reported, featured the circulation of materials exploring the possibility of impeachment as “a means of regulating the conduct of the Supreme Court.” In that context, Representative Mondaire Jones asserted that “the Supreme Court has long operated as though it were above the law.” 

Congress’s effort to oversee the Supreme Court could well precipitate a clash between Congress and the court at a moment when the draft of Justice Alito’s draft memo overturning Roe v. Wade has plunged the court into crisis. 

With protestors casing justices’ homes and chants disturbing the justices’ sleep, the proposed regulations are likely to not just chafe, but also run afoul of the Constitution. The core principle of separation of powers between different branches of government is implicated as Capitol Hill turns its gaze to the court.

In making the case for the bill, the committee chairman, Representative Jerrold Nadler, decried a “growing and persistent ethics crisis” at the high court that includes gifts, vacations, and little guidance on recusal procedures. 

Mr. Jordan, the ranking Republican, saw things differently. “Don’t let them fool you,” he warned. “This isn’t about ethics, this is an insurance policy for them when things don’t go their way, they want to have the tools at their disposal to make life hard for the justices.” 

The issue has been brewing for some time, nursed by Democrats as the makeup of the court has become more conservative. Members of both parties, though, ascribe the newfound heat over the subject to the controversy Democrats have been stoking over Justice Clarence Thomas’s wife Virginia’s involvement in the events of January 6.

Even as politicians squabble, they must be careful not to crash into guardrails erected by the Founders. Article III explains that “the judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

This language telegraphs that Congress is empowered with the authority to establish district and appellate courts as it so pleases but that the Supreme Court derives its authority directly from the national parchment.  

While the Nine and lower court judges operate under this twin grant of authority, the same rules do not govern both. In 1973, the Judicial Conference — created by Congress in 1922 — adopted the Code of Conduct for United States Judges. It does not apply to the Supreme Court, which regulates its own affairs.

A law professor, Kevin Hopkins, clarifies that “although it is within Congress’s power to create the Judicial Conference and provide direction to this entity, the Conference and its members would have no constitutional authority to prescribe rules and standards for the Supreme Court.”

One reason for this is that the more rules that are enacted governing judges, the more rules can be used to try to force recusals of justices by parties attempting to increase their chances of winning a case. 

This is why when it comes to recusals, each justice must decide whether to recuse himself and isn’t told what to do by his fellow justices. Chief Justice Rehnquist emphasized that the duty to recuse oneself in certain narrow circumstances is matched by an equally strong obligation that he called “the duty to sit.”  

A Supreme Court case from 1982 underlines the concern. N. Pipeline Constr. Co. v. Marathon Pipe Line Co. held that “the “judicial Power of the United States” must be reposed in an independent Judiciary” and “the independence of the Judiciary be jealously guarded, and it provides clear institutional protections for that independence.”

Any effort to impose a code of ethics on the Nine is itself likely to be subject to judicial review under the 1803 holding of Marbury v. Madison, which stands for the principle that “it is emphatically the duty of the Judicial Department to say what the law is.” Congress can pass a law, but the court is the arbiter of that law’s constitutionality. 

Aware of these barriers and yet still wishing to bind the court to a set of ethical directives, two dozen legal scholars in February penned a letter to the chief justice of the United States, John Roberts, stating, “we prefer that the Supreme Court draft a Code of Conduct and avoid the weighty questions that might arise if Congress imposed one.”

Chief Justice Roberts in 2011 explicitly ruled out such self-imposition, suggesting that “no compilation of ethical rules can guarantee integrity” and that the code for lower court judges does “not adequately answer some of the ethical considerations unique to the Supreme Court.” 

A different signal was sent in 2019 by Justice Elena Kagan, who in a hearing before a House appropriations subcommittee suggested the court is “studying the question of whether to have a Code of Judicial Conduct that’s applicable only to the United States Supreme Court” and that it’s “something that’s being thought very seriously about.”

The court is no longer alone in doing that thinking, even as it will likely battle to remain the sole arbiter of its conduct.