The first bill introduced by the Democratic-led House of Representatives last week contains a provision that would include U.S. Supreme Court justices for the first time in a newly created code of conduct.
If passed, the provision could raise separation-of-powers issues and would likely irritate the high court, which covets its independence and its special status under the Constitution. The provision could also revive the controversy over ethics complaints against Justice Brett Kavanaugh that were dismissed last month because he is now on the Supreme Court, outside the purview of existing judicial ethics rules.
H.R. 1, dubbed the “For the People Act,” is a wide-ranging bill that covers issues of transparency, corruption, ethics and campaign finance reform. The Supreme Court provision states:
“Not later than one year after the date of the enactment of this section, the Judicial Conference shall issue a code of conduct, which applies to each justice and judge of the United States, except that the code of conduct may include provisions that are applicable only to certain categories of judges or justices.’’
It is the latest of repeated efforts by Congress to impose an ethics code on the Supreme Court, which is exempt from the code first promulgated in 1973 by the Judicial Conference, the policy arm of the federal judiciary. Those legislative efforts have failed, although a bipartisan bill titled the Judicial ROOM Act of 2018, which included the same wording as H.R. 1, was approved by voice vote by the House Judiciary Committee last September. (ROOM stands for Reforms, Organization and Operational Modernization.)
“We’ve seen far too many examples of unethical conduct in our justices lately—from giving speeches at the Trump International Hotel, to headlining Federalist Society fundraisers, to skating free from scores of ethics complaints rendered unenforceable by a Supreme Court confirmation,” said Nan Aron, president of the liberal Alliance for Justice. “We expect the highest level of integrity from our Supreme Court justices, and it’s time that the official code of conduct reflected that.”
Senate Majority leader Mitch McConnell already stated, before H.R. 1 was unveiled, that the reform legislation is “not going to go anywhere in the Senate.” But Gabe Roth of Fix the Court, which advocates for reform of the Supreme Court, said the fact that there was bipartisan support for the reform bill last year “bodes well for passage in this legislation or, more likely, in another vehicle later on.”
Chief Justice John Roberts Jr. is already on record with the view that the Judicial Conference could not impose a code of conduct on Supreme Court justices. In his 2011 annual report on the state of the judiciary, Roberts stressed the “fundamental difference” between the Supreme Court and the lower federal courts. He elaborated:
“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.”
Other justices have said a code of conduct is unnecessary because they already voluntarily abide by the code for lower court judges. “The code of conduct does apply to the justices in the sense that we have agreed to be bound by them,” Justice Anthony Kennedy said in 2011.
Arthur Hellman, emeritus professor at University of Pittsburgh School of Law, said the provision in the new bill “does raise separation of powers questions primarily because the Supreme Court has constitutional status that no other court does. There has to be a Supreme Court under the Constitution, one Supreme Court.”
But Hellman noted that 28 U.S.C. 455, the federal law requiring federal judges to recuse themselves in specified circumstances, has long included Supreme Court justices, and “as far as I know no one has ever challenged the constitutionality of that.”
One path the Judicial Conference could take if the law is passed would be to issue a code of conduct that includes Supreme Court justices only to the extent of the recusal provisions already on the books in Section 455, Hellman said.
“Congress has already taken steps to regulate the ethics of Supreme Court justices and those are generally accepted, which makes this bill in its current form look not all that threatening,” Hellman said.