Can Congress impose ethical standards on the Supreme Court?

May 5, 2023, 2:30 PM

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WASHINGTON, D.C. — If you work for the federal government, you are subject to an executive order that defines 14 principles of ethical conduct. All federal employees, from mail carriers to IRS employees to federal judges, must follow these rules. But not Supreme Court justices.

There are only nine employees of the federal government, public servants in a real sense, who are not required by an order or law to adhere to ethical principles.

That doesn’t mean they don’t set them. There is just no way of enforcing them — no penalty for ignoring them.

Allegations of impropriety against Justice Clarence Thomas

This has all come to a head in recent days because of the money and expensive gifts Justice Clarence Thomas accepted from a prominent Republican donor named Harlan Crow. These gifts included the payment of private school tuition for his great-nephew.

Since these unreported gifts were revealed, the Senate Judiciary Committee held a hearing on the topic of Supreme Court ethics reform. Chief Justice John Roberts was invited to testify.

He declined. The reason he offered in a letter to Sen. Dick Durbin, D-Illinois, chair of the Judiciary Committee, was that Supreme Court chief justices don’t testify before Congress. On the few occasions they have, it has been regarding trivial matters.

Sen. Durbin responded to the Chief’s refusal to testify as defending the status quo.

“The highest court in the land shouldn’t have the lowest ethical standards,” he said.

Does Congress have the authority?

The question now is does Congress have the authority to impose ethical standards on the Supreme Court.

“We’ve not had to address this type of thing before,” KSL Legal Analyst Greg Skordas said. “My sense is they probably do, and if they don’t, I don’t know who else would.”

Skordas says it looks like the Supreme Court is self-policing and setting its own standards.

“Those standards don’t seem to be working very well,” he said. “Maybe somebody needs to step in and try something else.”

Attached to Chief Justice Roberts’ letter to Chairman Durbin was a statement on Ethics Principles and Practices. The statement talks about avoiding the “appearance of impropriety” in accepting speaking invitations but sets no standards or requirements. The letter references the Court’s decision in 1991 to follow the Judicial Conference Regulations that bind the lower courts but with no binding effect.

What happens if Congress passes ethics rules for the Supreme Court?

“It’s unlikely that we’re going to have significant changes in how we police the Supreme Court,” Skordas said.

But what if Congress did pass some kind of ethics rules for the Supreme Court? How could they be enforced? Would a case on these rules go before the very court that does not want to be bound by ethics rules?

“There would almost certainly have to be a complaint by someone,” Skordas explained. “Congress would have to set up some sort of a body that would hear complaints and address complaints. If there are impeachment type proceedings, those would happen in the Congress.”

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Can Congress impose ethical standards on the Supreme Court?