Can Congress impose ethics rules on the US Supreme Court?

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A group of Democratic lawmakers has reintroduced a bill that would require those who sit on the nation’s top court to comply with the same ethics rules that apply to other federal judges.

Under the Supreme Court Ethics Act of 2013, supreme court justices would be prohibited from political activity and fundraising, among other conduct that could cast doubt on their impartiality, according to the Blog of Legal Times and the Huffington Post.

Although members of the Supreme Court have said they look to the ethics rules that apply to other federal judges for guidance, they are not required to follow them.

“If the code of conduct applied to the Supreme Court, much if not all of what we believe are questionable behavior wouldn’t have taken place,” U.S. Rep.Louise Slaughter (D-N.Y.) said at a press conference last week. “Because the code sets forth very simple rules such as no political activity, we think that’s very important, no fundraising, and a necessity to avoid even the appearance of impropriety.”

It isn’t clear, however, how the standards would be enforced, if they are adopted, and a post on Josh Blackman’s Blog questions how the legislative branch can constitutionally regulate the conduct of the judiciary.

In his 2011 end-of-year report, Chief Justice John G. Roberts Jr., who has declined to voluntarily adopt the Code of Conduct for United States Judges, set forth his apparent position, the blog notes.

“The Code of Conduct, by its express terms, applies only to lower federal court judges,” Roberts wrote. “That reflects a fundamental difference between the Supreme Court and the other federal courts. Article III of the Constitution creates only one court, the Supreme Court of the United States, but it empowers Congress to establish additional lower federal courts that the Framers knew the country would need. Congress instituted the Judicial Conference for the benefit of the courts it had created. Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body.”

See also:

ABAJournal.com (2011): “Justices’ Ethical Judgments Weaken Supreme Court’s Reputation, Says NYT Editorial”

ABAJournal.com (2012): “Chief Justice Roberts Supports His Court’s Recusal Policies”

ABC News (2011): “Chief Justice Roberts Responds to Judicial Ethics Critics”

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