Judicial ethics and Supreme Court exceptionalism

By Amanda Frost

Editor’s note: The following is an excerpt selected by Professor Frost from her full 49-page research paper. The paper is available at the Social Science Research Network (registration is required) at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2304287.

In his mild-mannered way, Chief Justice John Roberts has set the stage for a constitutional conflict between Congress and the Supreme Court.  Roberts’ 2011 Year-End Report on the Federal Judiciary focused on judicial ethics, a subject that has been much in the news lately.

Link: Read Year-End Report

In the course of that year, several of the Justices were publicly criticized for theiralleged involvement in political fundraisers;  acceptance of gifts and travel expenses paid for by groups with political viewpoints; failure to report a spouse’s employment; and, most controversially, refusal to recuse themselves from the constitutional challenges to the health care reform legislation despite alleged conflicts of interest.

Existing laws already cover some of this claimed misconduct, and the spate of negative publicity inspired the introduction of new federal legislation that would further regulate the Justices’ behavior.

Roberts’ Year-End Report acknowledged these accusations of impropriety, as well as the legal framework that governs in this area.  Then, in a shot across Congress’s bow, he stated that the Court had “never addressed” Congress’s constitutional authority to prescribe ethics rules for the Supreme Court—which many took to be a broad hint that, at least in the Chief Justice’s view, Congress lacks that authority.

To be sure, the Chief Justice was careful to note that his “judicial responsibilities preclude [him] from commenting on any ongoing debates about particular issues or the constitutionality of any enacted legislation or pending proposals.”

But he went on to say that the “Court has never addressed whether Congress may impose [ethical] requirements on the Supreme Court,” and noted that the constitutionality of the recusal statute in particular has “never been tested.”  With those words, Roberts put the nation on notice that Congress’s authority to regulate the Justices’ ethical conduct is an open question.

The Chief Justice’s Report raises serious questions about the constitutional status of existing ethics legislation, as well as the Supreme Court Justices’ willingness to abide by laws that at least some of them may consider to be invalid, and thus non-binding.

Currently, federal legislation requires that the Justices recuse themselves from cases in which they have a conflict of interest, mandates that they file annual reports in which they publicly disclose many aspects of their finances, and bars them from accepting money for most outside employment.

Although the Justices appear to follow these laws, the Chief Justice’s Report suggested that he is not sure they have to.

His comments also cast doubt on the constitutionality of the Supreme Court Ethics Act of 2013, which was recently introduced by Representative Louise Slaughter and Senators Chris Murphy, Richard Blumenthal, and Sheldon Whitehouse.  Although the Chief Justice’s Report has provoked vociferous responses from those on either side of the issue, thus far there has been little academic analysis of the constitutional issues.