FACT CHECK: Can Congress Impose An Ethics Code On The Supreme Court?

Elias Atienza | Senior Reporter

Supreme Court Associate Justice Samuel Alito claimed in an interview with The Wall Street Journal that [n]o pro­vi­sion in the Con­sti­tu­tion gives [Congress] the au­thor­ity to reg­u­late the Supreme Court—pe­riod.”

The interview came as the Senate Judiciary Committee moved forward legislation in late July that would require the Supreme Court to create a “code of conduct” and require more disclosures of conflicts of interest, according to The Associated Press. It comes after media reports that Alito took luxury vacations with a Republican donor and fellow Justice Sonia Sotomayor has “advanced sales of her books through college visits over the past decade,” the outlet reported.

In context, it appears that Alito was talking about Congress imposing an ethics code on the Supreme Court. Check Your Fact decided to dive more into whether or not Congress could do so.

The New York Times reported that “proposals by lawmakers to require the Supreme Court to draft its own ethics code, or to directly impose one on the justices, raise the question of whether Congress has the constitutional power to do so.” A January 2023 Congressional Research Service report discussed whether or not Congress could impose an ethics code on the Supreme Court. (RELATED: Did Vivek Ramaswamy Vote For The First Time In 2020?)

The report found that “some observers” dispute that Congress can impose an ethics code on the Supreme Court but found that “requiring the Supreme Court to adopt a code of conduct could constitute a permissible exercise of Congress’s authority.”

“On the other hand, there are a number of ways that Congress may validly act with respect to the Supreme Court, including its authority to impeach Justices and to decide whether Justices are entitled to salary increases. By extension, requiring the Supreme Court to adopt a code of conduct could constitute a permissible exercise of Congress’s authority,” the report states.

Tom Jipping, Heritage Foundation senior legal fellow, told Check Your Fact in an email that “Congress, for example, does not have authority to require the Supreme Court to produce its own ethics code, as S.359 introduced by Sen. Whitehouse would require.”

“Whether Congress can impose an ethics code on the Supreme Court is debatable,” Jipping said and pointed to Harvard Law School professor Laurence Tribe saying they could and Michael Mukasey, a former federal judge and attorney general under former President George W. Bush, saying they couldn’t during a May 2023 hearing.

“A law compelling the court to adopt such a code, or purporting to impose one legislatively, would violate the principle of separation of powers, and would also be unworkable inasmuch as there is no authority other than the justices themselves to apply such a code,” Mukasey testified.

Other experts believed that Congress could impose an ethics code on the Supreme Court. (RELATED: Pentagon Claims Last Time U.S. Used Cluster Munitions Was In 2003)

Amanda Frost, a law professor at the University of Virginia School of Law, told Check Your Fact that Congress “has the constitutional authority to [regulate] the Court.”

“The answer is that [C]ongress has the constitutional authority to [regulate] the Court in many ways (eg, its size, the dates and place at which it meets, the types of cases it hears, it’s employees and budget), tho Congress cannot interfere with the Court’s decisional independence (eg, the outcomes of its cases). The text, structure, and longstanding practice all support Congress’s exercise of such authority, including regulation of the justices’ ethical obligations,” Frost said.

Frost also pointed Check Your Fact to her May 2 written testimony and New York Times columnist Jamelle Bouie’s August 1 column about Alito’s position. Martha Kinsella, senior counsel at the Brennan Center’s Democracy Program, wrote in a July 2023 analysis that Congress can regulate the ethics of the Supreme Court.

“Some opponents claim that reforms would be somehow unconstitutional. While Congress must respect the separation of powers and decisional independence of the justices, it has long exercised its constitutional power to regulate ethics in the Supreme Court,” Kinsella wrote.

Ilya Somin, a law professor at George Mason University, wrote in a Volokh Conspiracy column that Alito’s position “is questionable.”

“Article III empowers Congress to make ‘regulations’ for the Court’s appellate jurisdiction. That power surely includes at least some authority to ensure that cases are heard in a fair and unbiased fashion. For example, few deny Congress can bar Supreme Court justices (and other federal judges) from taking bribes. And the federal anti-bribery statute does in fact cover the justices along with other federal judges. The same logic can also empower Congress to restrict at least some potential conflicts of interest less extreme than outright bribery,” Somin wrote.

Further in the column, Somin wrote, “[Congress] can also probably impose at least some types of ethical restrictions on justices, at least if we concede that it has the power to ban bribery, which few dispute. But congressional power over the Court is far from unlimited. And some ethics rules could potentially go beyond the scope of congressional authority.”

Jipping said that the “lower courts’ ethics is advisory, not binding…”

While it’s common to say that the Supreme Court should have a ‘binding’ ethics code, the truth is that the lower courts’ ethics is advisory, not binding, and the Supreme Court has (at least twice in writing) said they use the Code of Conduct for United States Judges for the same reason that lower courts do – advice in making decisions about ethics question,” Jipping said.

Elias Atienza

Senior Reporter
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