City Bar Association asserts Congress has authority to impose ethics rules on Supreme Court

October 2, 2024 Robert Abruzzese, Courthouse Editor

Supreme Court Justice Clarence Thomas has faced scrutiny over undisclosed luxury trips and gifts from wealthy benefactors, sparking concerns about transparency and impartiality and prompting calls for Congress to impose enforceable ethics rules on the Court. Photo: Scott Applewhite/AP

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The New York City Bar Association released a report on Tuesday asserting that Congress has the constitutional authority to establish binding ethics rules for the U.S. Supreme Court, urging lawmakers to create new mechanisms for holding Justices accountable.

The report recommends the formation of a Judicial Investigation Panel and an Office of the Inspector General for the Supreme Court, citing recent revelations of ethical noncompliance by Justices that have eroded public confidence in the Court.

“The need for Supreme Court Justices to comply with the highest ethical standards is a nonpartisan issue because, as the Supreme Court itself has emphasized, public confidence in the integrity and neutrality of the courts is a bedrock principle of the rule of law,” the report states, stressing the urgency of congressional action.

The City Bar points to three constitutional provisions as the foundation for Congress’s authority to enact enforceable ethics standards for the Court: Article I’s Necessary and Proper Clause, Article II’s impeachment provision, and Article III’s Good Behavior Clause.

The report identifies the Necessary and Proper Clause as the most straightforward basis for Congress’s power, explaining that it “expressly authorizes Congress to make laws to implement the coordinate branches’ powers.” It adds that the Supreme Court has “interpreted the Necessary and Proper Clause broadly, including in cases involving legislation related to the operation of the Court.”

The report also emphasizes Congress’s impeachment power and its authority to define “good behavior” as further support for its ability to regulate the Court. The report notes that the impeachment power “lies at the heart of our system of checks and balances” and argues that these provisions enable Congress to enact a binding ethics code for Justices.

Responding to concerns that such measures could undermine judicial independence, the City Bar argues that “neutral rules applied neutrally would not interfere with the Court’s decisional independence or undermine the structure of the three separate branches of government.”

The report adds, “Any conception of the separation of powers as requiring the three branches of government to be completely independent misperceives the interdependent system of government created by our Constitution.”

The City Bar also proposes reforms aimed at addressing specific areas of concern, such as recusal decisions. The report states, “A Justice can decide to recuse by him or herself but cannot decide alone to decline a properly presented request for recusal.” It suggests empowering the Office of the Inspector General to investigate when a recusal request is made, ensuring that no Justice is the sole arbiter in cases involving potential conflicts of interest.

The report concludes by warning that the current state of ethical compliance at the Supreme Court threatens its legitimacy: “There has been an erosion of confidence in the Supreme Court, and doubt has grown about whether it complies with the ordinary rules of ethical behavior that apply to other judges.”

It calls on Congress to act, stating that “It is time for Congress to act to reassert its primary law-making role and to guarantee that the Justices of our highest Court exhibit the ‘good behavior’ that the Constitution requires of all of them as a condition for remaining in office.”