Can the Supreme Court assert selective legal compliance? 

When Supreme Court Justice Samual A. Alito, Jr. recently declared in a Wall Street Journal interview that, “No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court — period,” my jaw dropped.  As a longtime House staff member steeped in Congress’s Article I powers “to make all laws necessary and proper,” not only to execute its enumerated powers but its authority over “all other powers” vested “in the government” or “in any departments or officer thereof,” Alito’s assertion defied my comprehension.   

I was especially struck by the remark given my participation as co-counsel of the House Bipartisan Task Force on Ethics in the 101st Congress that produced the “Ethics Reform Act of 1989”  — an updated and tougher version of “The Ethics in Government Act of 1978.” The 1989 law banned honoraria, imposed tough new limits on outside earned income, and required detailed financial disclosure statements. The new law applied across-the-board to all three branches with no   exceptions or exemptions for officials of the other two branches of government.

Apparently, what prompted Alito’s bold assertion were news reports questioning why he didn’t recuse himself in a potential conflict of interest situation plus congressional attempts to force the Supreme Court to adopt its own ethics code. Other justices had come under fire recently in the press — Justice Clarence Thomas over luxury travel and certain financial transactions involving wealthy friends, and Justice Sonia Sotomayer over her book promotion scheme. 

The spate of ethics charges prompted Sen. Sheldon Whitehouse (D-R.I.), along with 33 Democratic co-sponsors, to introduce the “Supreme Court Ethics, Recusal and Transparency Act” (S. 359).  The bill would require the Supreme Court to adopt its own tough ethics code and establish a mechanism for enforcing it by investigating alleged violations, tighten financial disclosure and transparency obligations relating to potential conflicts, and require justices to explain to the public their recusals.

Chief Justice John Roberts declined an invitation to testify on the bill before the Senate Judiciary Committee out of separation of powers and judicial independence concerns. Roberts did submit a letter to the committee that included a “Statement on Ethics Principles and Practices” signed by all nine members of the court, in essence asserting that the court would continue to police itself. Roberts’s statement drew on his 2011 year-end report which indicated that justices followed the ethics code applicable to lower courts under the U.S. Judicial Conference’s “Code of Conduct.” That 2011  report perhaps also provided fodder for Alito’s more recent declaration of independence, since Roberts conceded that, while the court has complied with the annual financial disclosure requirement and outside income limits in the “Ethics Reform Act,” the “Court has never addressed whether Congress may impose those requirements on the Supreme Court. The Justices nevertheless comply with those requirements.”   

Whitehouse’s bill is unlikely to be considered by the Senate given Republican opposition and the 60-vote threshold for calling it up. A House companion bill introduced by Rep. Hank Johnson (D-Ga.), with 90 Democratic co-sponsors has even less chance of making it out of committee given Republican control of that chamber.  

The Judicial Conference’s “Code of Conduct for U.S. Judges” applicable only to the lower courts, but alluded to by Chief Justice Roberts as also providing guidance to Supreme Court justices, provides in Canon 1 that “an independent and honorable judiciary is indispensable to justice in our society,” and, therefore, that “a judge should maintain and enforce high standards of conduct…so that the integrity and independence of the judiciary may be preserved.” 

While that phraseology might seem to provide an excuse for avoiding compliance with ethics requirements enacted by Congress, the “commentary” accompanying the Canon makes clear that the ethics rules contained in the Canons “are rules of reason” and “should be applied consistently with constitutional requirements, statutes, and other court rules and decisional law.” There is no selective legal compliance loophole available to the Supreme Court. No one, not even the highest justices in the land, is above the law.

While the pending ethics legislation for the Supreme Court is unlikely to be enacted into law in this Congress, it nevertheless serves the useful purpose of keeping pressure on the court to adopt its own tough code to help restore public trust in the third branch of government.  

Don Wolfensberger is a 28-year staff veteran of the House of Representatives, serving as Republican staff director of the House Rules Committee from 1991 to 1994, and chief of staff of the full committee from 1995 to 1997. He is author of “Congress and the People: Deliberative Democracy on Trial” (2000), and “Changing Cultures in Congress: From Fair Play to Power Plays” (2018). The views expressed are solely his own.