The media reported that some Supreme Court justices had received undisclosed gifts worth hundreds of thousands of dollars from wealthy benefactors, had failed to recuse themselves when those benefactors’ matters came before the Court, or had misused their positions and influence for personal gain. With each revelation, Supreme Court ethics gradually became a matter of public concern to a degree not seen since 1969, when Judge Fortas resigned in a scandal over his receipt of $20,000 from a Wall Street financier.

These recent scandals have sparked debate about the adequacy of existing ethics and financial disclosure standards for Supreme Court justices, and about how best to enforce them. The Court first responded to these discussions with assertions, expressed both implicitly and explicitly, that any kind of ethics reform imposed by Congress would violate the principles of separation of powers required by the Constitution. Then, in November 2023, the Court enacted an ethics code that excused problematic conduct by judges and included no enforcement mechanism, leaving the status quo largely intact.

Several of the open constitutional questions related to Supreme Court ethics reform are a result of Congress historically giving the Court wide latitude, and it is time to settle those questions once and for all. This chapter argues that constitutional challenges to Congress’s power to regulate the Court are vague, unhelpful, and should not prevent Congress from acting to enforce ethical standards at the Supreme Court. Congress has a variety of avenues it can and should take to regulate extrajudicial conduct by judges. Section A explores past and present movements for Supreme Court ethics reform. Section B provides an overview of the ethical guidelines that currently govern judicial conduct in the lower federal courts and, to some extent, the Supreme Court. Section C contextualizes these failures within a framework, espoused by the Court, that it is above congressional regulation. Section D refutes that framework by examining the constitutional basis for Congress’s power to regulate Supreme Court ethics and provides ways for Congress to act now, without waiting for future legislation.

A.  Billionaires and Benefactors: The Past and Present of Supreme Court Ethics

Since its creation more than two centuries ago, the Supreme Court has faced a number of ethical dilemmas that persist to this day. Section 1 begins by examining the early years of the judiciary, which were characterized by vague ethical obligations and the absence of clear boundaries for judicial conduct. Section 2 turns to an analysis of the Supreme Court’s recent ethical failures. Section 3 addresses the significance of these ethical failures and the need for ethics reform to restore confidence in the Supreme Court.

1. The History of Ethical Issues on the Court. — The Judiciary Act of 1789,3 which established the federal court system, only vaguely addressed the ethical obligations of judges and justices; The legislation simply required judges and justices to take an oath to “do equal right to the poor and rich” and to “faithfully and impartially” perform the duties of the office.4 Then, in 1792, Congress enacted the nation’s first federal disqualification law, requiring judges to recuse themselves in cases where they had an interest in the proceedings.5

These efforts to impose limits on judicial conduct did little to constrain the next century and a half of extrajudicial political behavior by Supreme Court justices. For example, in 1795, Chief Justice Jay ran for governor of New York while serving as chief justice.6 Justice McLean ran for president—though he never won the nomination—in 1836, 1848, 1852, 1856, and 1860, all while serving on the Court.7 And in 1868, Chief Justice Chase sought the presidency while serving as chief justice.8

A remarkable and surprising turning point for judicial ethics occurred in the early 1920s: a scandal in Major League Baseball. A federal judge was appointed Commissioner of Baseball to address a 1919 incident of match-fixing,9 which led the public to question whether one person could perform the duties of both offices while also remaining faithful to the ethical obligations set forth in the Judiciary Act of 1789.10 The scandal prompted the American Bar Association (ABA) to form a commission on judicial ethics, headed by Chief Justice Taft,11 which in turn formulated the advisory Canons of Judicial Ethics (“the Canons”) in 1924.12 The Canons were intended to regulate all manner of extrajudicial activities, from political activities13 to commercial promotions,14 but they had no enforceable legal effect on state or federal judges.15

The Canons’ lack of force made them an ineffective stopgap for judicial misconduct. Following the Canons’ publication, Chief Justice Taft himself “disregarded the Canons’ injunction against political activity”16 by remaining involved in the Republican Party, openly expressing support for political candidates, and advising sitting presidents on a wide range of issues.17 Justice Douglas routinely offered political advice to President Franklin D. Roosevelt18 and was nearly expelled from the Court for receiving a stipend from a nonprofit foundation.19

The 1960s brought controversies that catalyzed renewed efforts to reform ethics regulations. In 1968, Justice Fortas was not confirmed as Chief Justice of the Supreme Court after generating controversy by advising President Lyndon B. Johnson on political matters and receiving $15,000 for lectures.20 Although Justice Fortas remained on the Court, evidence that he received outside income eventually forced his resignation in 1969.21 Fortas’ resignation and society’s growing attention to the (mis)conduct of public officials22 likely prompted the ABA to create the 1972 Code of Judicial Conduct.23 A year later, the Judicial Conference followed suit and adopted the Code of Conduct for Judges of the United States (“the Code”),24 which was functionally identical to the ABA code, save for a few slight modifications.25

Although the Code explicitly governs the conduct of lower court judges, it does not include Supreme Court justices within its purview.26 Accordingly, recent reform efforts have focused on the Supreme Court, particularly following the 1972 decision. from the 2000 presidential election recount in Bush v. Gore.27 The late Justice Scalia’s hunting excursion with Vice President Cheney,28 for whom Justice Scalia voted in Cheney v. United States District Court for the District of Columbia,29 prompted allegations of extrajudicial and politically motivated wrongdoing.30 The late Justice Ginsburg’s scathing criticism of then-presidential candidate Donald Trump prompted similar public scrutiny.31

2. Recent Supreme Court Ethical Lapses. — The spring and summer of 2023 highlighted some particularly shocking ethical lapses by the Supreme Court. This section provides a brief overview of the most reported Supreme Court ethical lapses in 2023 and accordingly focuses on Justices Thomas, Gorsuch, Alito, and Sotomayor.

(a) Justice Thomas. — On April 6, 2023, ProPublica revealed that Justice Thomas had accompanied billionaire Republican megadonor Harlan Crow on undisclosed luxury trips for more than two decades.32 These trips included flights on Crow’s private jet, vacations aboard his superyacht, and stays at his resorts.33 Indeed, in just three decades on the Court, Justice Thomas received at least thirty-eight destination vacations funded by a group of industry billionaires.34 He did not report any of these trips in the financial disclosures he filed each year.35

ProPublica also reported that in 2014, Crow paid Justice Thomas and his family $133,363 in exchange for three properties in Georgia, one of which was the home where the Justice’s mother lived and was reportedly still residing as of April 2023.36 Crow also donated half a million dollars to a conservative political organization founded by Justice Thomas’ wife37 and paid for his school tuition. 38 The New York Times also revealed that Judge Thomas failed to repay a “significant portion” of a quarter-million-dollar loan from wealthy businessman Anthony Welters. 39 The loan was inexplicably forgiven nine years later. 40

Some ethics law experts say these failures to report were clear violations of the Ethics in Government Act of 197841 (EGA), which was intended to apply to all federal officials and requires disclosure of both real estate transactions and most gifts. 42

(b) Justice Gorsuch. — On April 25, 2023, Politico reported that in 2017, Justice Gorsuch sold a forty-acre property to Brian Duffy, the CEO of the prominent law firm Greenberg Traurig.43 Justice Gorsuch’s property had languished on the market for two years before finally being purchased just nine days after his appointment to the bench.44 Justice Gorsuch made between $250,001 and $500,000 from the sale, according to federal disclosure forms.45

Although Justice Gorsuch reported the sale on his federal disclosure forms, he did not disclose the identity of the land’s purchaser and left that box on the form blank.46 Following the sale, Greenberg Traurig participated, either as a filer of an amicus brief or as a representative attorney, in at least twenty-two cases that came before the Court; Justice Gorsuch sided with the firm at least eight times.47 While the sale of Judge Gorsuch’s property may not be a clear violation of existing ethics laws, the conflict of interest presented by the transaction underscores the need for financial disclosure reform for Supreme Court justices.48

(c) Justice Alito. — On June 20, 2023, ProPublica reported that in 2008, Justice Alito took a lavish fishing trip to a remote corner of Alaska and stayed at the King Salmon Lodge.49 He flew to the lodge for free aboard a private plane owned by Republican megadonor Paul Singer.50 His three-day stay was paid for entirely by Robin Arkley II, another wealthy conservative donor.51 Leonard Leo, the then-leader of the conservative legal group Federalist Society, helped organize the fishing vacation and arranged for Justice Alito’s place aboard Singer’s plane.52 Justice Alito did not disclose the entire excursion in his year-end federal disclosure forms.53 Justice Alito also did not recuse himself from reviewing the numerous cases involving Singer’s hedge fund that came before the Court after his Alaska trip.54

(d) Justice Sotomayor. — On July 11, 2023, the Associated Press revealed that Judge Sotomayor’s taxpayer-funded staffers routinely encouraged public institutions to buy “hundreds, sometimes thousands” of copies of Judge Sotomayor’s books in anticipation of the judge’s speaking engagements.55 These bulk purchases were often presented by the staffers as the implicit price of a speaking appearance by Judge Sotomayor.56 Such conduct is prohibited for members of Congress and the executive branch, who are prohibited by law from using government resources, such as their staff, for personal financial gain.57 Such conduct also clearly violates the Code of Conduct for U.S. Judges, which prohibits the substantial use of “rooms, resources, or personnel” to advance such private interests.58

Moreover, when the Court considered several cases involving her publisher, Penguin Random House, Judge Sotomayor did not recuse herself.59 Although the judge had no financial interest in the books, she did not recuse herself. 60

3. Judicial Ethics and Public Trust. — Efforts to downplay these ethical misconducts have taken various forms. Justice Thomas’s attorney, Elliot S. Berke, denounced press reports of the judge’s conduct as a “political blood sport… motivated by hatred of his judicial philosophy, not by any real belief in any ethical failure.”61 Conservative pundits such as Thomas Jipping of the Heritage Foundation have expanded the charge of partisan witch-hunting to include the Court as a whole, calling the left’s laments about the Court’s conduct a “smokescreen” and “disorientation” driven by those who view the Court’s “independence as an obstacle to be overcome.”62

Recent proposals for Supreme Court ethics reform, however, would apply to all Supreme Court justices, regardless of the president’s party appointee. Greater transparency would allow the Court to subvert any anti-conservative narratives perpetuated by the media and ensure an unbiased account of all of the justices’ activities and ethics violations. Most importantly, ethics reform would create guardrails for the institution itself and restore public trust. While some changes have finally occurred from within the Court,63 those changes are insufficient to adequately address the recent problematic conduct of several justices, and Congress must create enforceable ethical rules that the justices must abide by.

B.  Current and Proposed Ethics Rules

This section begins by discussing the complexities of existing judicial ethics statutes and their applicability to the federal judiciary, with particular attention to the Supreme Court. Section 2 discusses the Court’s responses to outside judicial ethics reform efforts. Section 3 concludes by examining the Court’s new Code of Conduct. This section is intended to underscore the urgent need for Congress to establish a formal, enforceable code of ethics for the Supreme Court.

1. Ethics Standards in the Federal Judiciary. — As noted above,64 the Code of Conduct for United States Judges provides guidance on a wide range of judicial conduct; for example, it advises judges to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”65 Although the Code applies to most lower-level judges, it does not explicitly apply to justices of the United States Supreme Court. 66

In 2011, Chief Justice Roberts assured the public that members of the Court “do in fact consult [the Code] in assessing their ethical obligations.”67 He noted that judges also have several avenues besides the Code at their disposal, including the Judicial Conference Committee on Codes of Conduct, the Court Law Office, and their fellow judges.68 They may also turn to “judicial opinions, treatises, scholarly articles, and disciplinary decisions.”69 Thus, Chief Justice Roberts said, “the Court has had no reason to adopt the Code of Conduct as its definitive source of ethical guidance.”70 However, like other federal judges, the Court’s consultation of the Code is voluntary.71 And in his 2011 brief, Roberts stated that “the Code of Conduct is a source of ethical guidance that has no basis for being a source of ethical guidance.”70 However, like other federal judges, the Court’s consultation of the Code is voluntary. 71 And in his 2011 report, Roberts stated that “the Code of Conduct is a source of ethical guidance that has no basis for being a source of ethical guidance.”71 In the report, Chief Justice Roberts was careful to note that while judges complied with Congressional requirements regarding financial reporting and limitations on receipt of gifts and outside income, Congress’s constitutional authority to include judges in those laws had never actually been established.72

Outside of the Code, some laws impose ethical requirements on judges. For example, 28 U.S.C. Section 455 requires all federal judges, including Supreme Court justices, to recuse themselves from cases under particular circumstances, such as when they “have a personal bias or prejudice toward one of the parties”73 or “a financial interest in the issue in controversy.” 74 Congress, through the Ethics in Government Act of 1978 and the Ethics Reform Act of 1989,75 also directs senior officials in all three branches to file annual financial disclosure reports and to observe limits on the acceptance of gifts. 76 The Judicial Conference has also issued regulations regarding legal reporting77 and the acceptance of gifts. 78 Chief Justice Roberts has noted that the Court voluntarily complies with these laws. 79

Unfortunately, these ethical standards are riddled with ambiguities. Although the Judicial Conference recently clarified that “transportation in lieu of commercial transportation,” such as private jet travel, must be disclosed under the Ethics Reform Act of 1989, that standard does not apply to stays at luxury resorts because of the Act’s “personal hospitality” exemption.80 Moreover, there is no limit to the amount of “personal hospitality” that wealthy benefactors can lavish on a judge, and today all of it can be legally hidden.81

Furthermore, 28 U.S. Code Section 455 provides no clear enforcement mechanism for challenging a judge’s failure to recuse himself, leaving each judge free to decide whether to recuse himself from a particular case. While most federal judges do not recuse themselves on motion or on their own initiative,82 there is no appellate court with the power to review a Supreme Court justice’s failure to recuse.83 Therefore, decisions to recuse judges are almost always made without public explanation and are not reviewable.84

2. The Court’s Reactions to Ethics Reform. — On April 20, 2023, Senator Richard Durbin, chairman of the Senate Judiciary Committee, sent a letter to Chief Justice Roberts inviting him or one of his fellow justices to testify before a panel considering changes to current ethics rules.85 “The time has come for a new public conversation about ways to restore confidence in the Court’s ethical standards,” Senator Durbin wrote, “I invite you to join it and look forward to your response.”86

Five days later, Chief Justice Roberts sent a letter to the committee declining their invitation.87 Chief Justice Roberts wrote that such appearances by a Chief Justice before Congress were “extremely rare, as might be expected in light of concerns about the separation of powers and the importance of preserving judicial independence.”88 Chief Justice Roberts attached to the letter a “Statement on Ethical Principles and Practices” signed by all nine justices and to which, he said, “all of the justices subscribe.”89 current members of the Supreme Court.”89

Chief Justice Roberts’ message was clear: existing guidelines on gifts, travel, and other financial disclosures were sufficient and did not need to be changed. Senator Durbin publicly rejected the Chief Justice’s reasoning for refusing to testify.90 First, while there have only been two instances of a Chief Justice testifying before the Senate Judiciary Committee, sitting justices of the Court have appeared at ninety-three congressional hearings since 1960.91 Indeed, in 2019, Justice Kagan testified at a congressional hearing where she revealed that the Supreme Court was considering adopting a code of judicial conduct at that time.92 Second, the Chief Justice’s letter ignored the obvious: the flood of reports throughout early 2023 demonstrated, quite publicly, that the justices had not adhered to existing laws and ethical standards.

Most troubling, however, was Chief Justice Roberts’ claim that testifying before Congress would implicate judicial independence and the separation of powers doctrine. 93 He made a similar claim in his 2011 year-end report on the state of the federal judiciary, writing that Article III of the Constitution established “but one court” and left the rest of the judicial power to Congress. 94 And in 2012, Chief Justice Roberts rejected 95 calls from the Judiciary Committee 96 to adopt a binding ethics code after it was revealed that Justice Thomas failed to disclose the value of his wife’s income from various political employers for years. 97

In July 2023, Justice Alito echoed the Chief Justice. In response to proposed legislation requiring the Court to adopt a binding ethics code, Justice Alito noted, “‘Congress did not create the Supreme Court,’ the Constitution did.”98 “No provision of the Constitution gives [Congress] the authority to regulate the Supreme Court, period.”99

In other words, “[t]he Court controls…but it cannot be controlled.”100 As Senator Durbin wrote in response to Chief Justice Roberts’ refusal to testify, “[i]t is time for Congress to accept its responsibility to establish an enforceable code of ethics for the Supreme Court, the only agency in our government without it.”101

3. The Court’s Ethics Code. — On November 13, 2023, the Court published its first-ever code of ethics governing the conduct of its members.102 In it, the Court could have acknowledged the gravity of its recent financial and political scandals and positioned the new Code of Conduct as part of a broader, ongoing internal reform effort. Instead, the justices wrote in a brief introduction that “[t]he absence of a Code… has led in recent years to the misunderstanding that the judges of this Court, unlike all other jurists in this country, consider themselves free from any ethical rules.”103 Moreover, despite recent reports of possibly unethical conduct, the Court’s statement assured the public that the rules and principles within the Code were “not new” and “largely represent a codification of principles that [it] has long regarded as governing [its] conduct.”104

The nine-page Code of Conduct echoes the code that applies to lower court judges, with some notable differences. For example, lower court judges are told not to “lend the prestige of their judicial office to advance their private interests.”105 Judges are simply advised not to do so “knowingly,”106 a loophole that may kill the rule. The Code details some restrictions on judges’ involvement in fundraising,107 reiterates requirements to file disclosure reports and limit acceptance of gifts in accordance with relevant statutes and regulations,108 and states that “judges should not engage in extrajudicial activities that undermine the dignity of the office of a judge, interfere with the performance of his or her official duties, reflect negatively on his or her impartiality, [or] lead to frequent disqualifications.”109

The main difference between the Court’s Code and that applying to lower court judges is their treatment of recusal. The Commentary accompanying the Code explains that judges should be more cautious about recusing themselves because they cannot be replaced when they do so.110 Thus, the Commentary explains that the Code’s provision on recusal “should be narrowly construed.”111

One would think that an ethics code enacted due to public pressure would discourage the unethical conduct that sparked the uproar, but that is not the case with this Code of Conduct. For example, on the issue of outside influences on judges, the Code states that “[a] judge should not allow family, social, political, financial, or other relationships to influence official conduct or judgment” and should not “[e]noughly lend the prestige of the judicial office to advance the private interests of the judge or others or deliberately convey or allow others to convey the impression that they are in a special position to influence the judge.”112 Would this rule have prevented Justices Thomas and Alito from maintaining relationships with billionaire donors? The rules suggest that as long as judges claim not to be “influenced” by their wealthy connections or “consciously” give the impression that they are, there is no ethical violation. Without an enforcement mechanism to determine when such relationships have gone too far, the scandals of last summer can be freely repeated under the new Code.

The Court’s Code of Conduct remains significant. It indicates that judges recognize some obligation to communicate with and appease the American people. It indicates that public pressure works, even in powerful institutions that are, by design, insulated from public pressure. It is an act of public responsibility, however symbolic it may be. And, frankly, it is better than nothing.

The lack of an enforcement mechanism for the Code, however, leaves the bottom line where it has always been: who will judge the judges? Who will ensure that the Code’s rules are followed? As Professor Stephen Vladeck argues.

C.  Enforcement

Even if one accepts that, ideally, Supreme Court justices should follow a code of ethics, that code does not explain what happens when a judge engages in potential misconduct. The simplest measure would be for the Supreme Court to issue itself an ethics code outlining the sanctions for violations of its rules — essentially a self-enforcing code. As noted above, the American Bar Association,114 advocacy groups,115 legal scholars,116 and even former lower court judges117 urged the Supreme Court to adopt its own code, leading to the November 13, 2023, announcement.118 The difficulty the nine had in reaching consensus, however,119 seems clear from the enacted Code, which does not actually condemn any of the conduct questioned by the public, Congress, and former judges.120 The Judges’ Code is also nonbinding, both because it leaves determinations of suitability up to individual judges and because it outlines no mechanism for enforcing the code or sanctioning misconduct.121 Since the Court has not committed itself to any ethical standards, protectors of the Court’s legitimacy would have to look to another branch for enforcement.

Any enforcement plan must first ask: Who would be able to judge the conduct of the nation’s most senior judges? The very structure of the three branches of the federal government can pose a problem for enforcement. Life tenure and salary protections guarantee the “independence of judges to best interpret the law, shielding their decisions from outside political pressures.”122 This insulation is necessary to ensure that the Court can properly evaluate legislation and executive action without fear of retaliation. However, it also means that Congress and the Executive must tread carefully when wading into ethical issues, lest regulation of nonjudicial conduct infringe on that judicial independence.

Despite these structural protections, Congress frequently regulates the Supreme Court. Few question Congress’s authority to limit the Court’s appellate jurisdiction, set its budget and session length, and even expand or reduce (in the event of death or retirement) the number of judges. This section argues that Congress is best positioned to impose some ethical standards on the Court.

Many, including several of the justices themselves, advocate self-regulation by the Supreme Court and reject all possible enforcement mechanisms by another body as unconstitutional. 123 Whether Congress can regulate the conduct of judges, however, is an open constitutional question,124 and both history and current practice imply that Congress has the constitutional authority to do so. This section first addresses Congress’s general power to regulate the Supreme Court and why, despite the justices’ claims, this power is constitutionally valid. Enforcement mechanisms can be divided into two general categories. In the first, Congress acts as a direct enforcer of ethical standards. In the second, Congress delegates to some other body oversight of the judges’ nonjudicial conduct. An examination of state court systems shows how lower court judges can also play a role in policing judges’ conduct. This section argues that Congress has several constitutional avenues to act regarding Supreme Court ethics reform.

1. Congress’s Power to Regulate Judges’ Conduct. — This section argues that Congress’s power to regulate the extrajudicial conduct of Supreme Court justices is at worst constitutionally unclear and at best textually unsupported. It first addresses vague arguments raised by opponents of congressional regulation—including some of the justices themselves—and concludes that those arguments lack clear constitutional reasoning and are ultimately futile. Instead, the Necessity and Properity Clause and historical practice provide a clear, textual constitutional argument that Congress may regulate the conduct of individual judges.

(a) Separation of Powers. —Some argue that the Constitution’s implicit separation of powers precludes Congress from enforcing any kind of ethics legislation on the Supreme Court.125 Given the aforementioned constitutional structure, however, Congress has claimed some level of involvement in the Court’s day-to-day functions, from the most mundane details to fundamental structural issues.126 Ethics does not present a previously unseen threat to the independence of the judiciary. Indeed, the Court has largely complied with ethics-related statutes, signaling its constitutional insulation from them but adhering to them nonetheless.127

It is true that applying any kind of sanction for an ethics violation is a relatively new proposition for Congress. At its core, however, the separation of powers principle protects judicial independence,128 which is not necessarily implicated in the enforcement of ethics. Congress’s focus on extrajudicial ethics violations and issues related to recusal is integral to ensuring judicial legitimacy and the proper functioning of statutes intended to protect that legitimacy. Many criticisms of the separation of powers can arise from this normative view of Congress’s role based on the structure of the Constitution.129 Chief Justice Roberts and Justice Alito, who have commented most directly on the issue, have not clarified the constitutional reasoning for their conclusions.130 While this type of pronouncement carries weight, Congress need not accept it as binding constitutional law. The separation of powers principle may even benefit if Congress pushes for some form of ethics regulation, encouraging the Court to accept such regulation or to articulate strong separation-of-powers grounds for rejecting it.

(b) Status of the Court. — Justices and other opponents of Congressional enforcement of ethics cite the special status of the Supreme Court as a constitutionally created body, in contrast to the lower federal courts, which are created by Congress.131 As a constitutional matter, however, the justices as individuals are treated no differently than other Article III judges. All Article III judges have salary and tenure protections guaranteed by the Constitution.132 The fact of constitutional creation does not put judges’ extrajudicial conduct beyond the reach of legislative regulation, particularly with respect to actions taken as individuals, such as engaging in political activities or receiving gifts.

Recusal is the only category of ethics regulation that affects judicial decision-making. The status question is more difficult to answer here, but again it does not weigh against Congress’s power to protect against an out-of-control Court. Although recusal violations require careful consideration and raise questions of constitutional legitimacy, no clear answer has emerged from the history and text of the Constitution.133 This difficulty speaks only to the relative political desirability of greater enforcement of laws regulating judges’ extrajudicial activities.

(c) Legitimacy of the Court. — Opponents of congressional intervention rightly point out that Congress and the Court are co-equal branches of government.134 While that is true, Congress is better positioned to navigate the quagmire of ethics violations and plummeting public trust that the Court has created. Congressional action is, first, more legitimate in the eyes of the public, given the perception that the Court does not police itself,135 and, second, it “offers greater scope for coordinated efforts between the two branches.”136 Congress needs to begin enforcing these ethics statutes to begin the process of shaping this constitutional gray area.137 The legislature has the power to act on its interpretations of the Constitution,138 and while ethics regulation is delicate, that does not mean Congress should abdicate its normal duties.

(d) The Necessary and Proper Clause. —Given the general constitutional arguments above, the Constitution provides a textual “hook” for this power of Congress to regulate in the Necessary and Proper Clause. The Constitution establishes the Supreme Court in bare language in Article III, leaving many of the details for Congress to fill in (or not). 139 These gaps in Article III—which include fundamental issues such as the size of the Court, the processes by which it hears cases, and the scope of its appellate jurisdiction—underscore the role of Congress in establishing and regulating the Court. 140 Congress has exercised this necessary and proper authority by expanding and contracting the size of the Court, establishing and adjusting procedural rules, and even regulating the oath that justices take upon assuming office. 141 Scholars have noted that, in contrast to Article III, Article I of the Constitution sets forth detailed procedural rules for the legislative branch, 142 implying that Congress was not only empowered but “perhaps even obligated” to establish rules of governance for the Supreme Court. 143

These notable gaps in Article III, when combined with Article I’s Necessary and Proper Clause, “confirm[] this perception of Congressional Primacy in empowering Congress to make laws necessary and proper to carry out the execution of the powers vested in the judicial department.”144 Using the Necessity and Properity Clause in combination with some of the powers listed below, Congress can act today to enforce existing ethical standards, rather than attempting to empower itself through new legislation. The constitutional structure explains why Congress was able to act and why its prior legislation, including laws requiring financial disclosures and prohibiting outside income and gifts, validly applies to the Court.

2. Direct Enforcement by Congress. — “The nonjudicial conduct and activities of the Supreme Court are subject to law, just as the conduct and activities of all other citizens are subject to law. Much of the nonjudicial conduct and activities of judges are, of course, subject to law today.” 145 The United States Code of Conduct for Judges, which applies to the lower federal courts, is not technically “binding” on them because it is itself merely advisory. 146 While it is a valuable resource, it cannot be the final answer to these ethical questions because, by definition, it is without force. 147 Furthermore, the Judicial Council Reform and Judicial Conduct and Disability Act of 1980148 (Judicial Conduct Act) provides an avenue for almost anyone to file a complaint against a federal judge who “has engaged in conduct prejudicial to the efficient and expeditious administration of the business of the courts.” 149 However, this statute does not extend to Supreme Court justices either. 150 While the expansion of both the Code and the Judicial Conduct Act, as well as the possibility of establishing a new Inspector General for the Supreme Court,151 are promising steps, this section focuses instead on ways in which Congress can require ethical adherence by judges today.

In the most extreme case, Congress can impeach a judge for misconduct. Equally extreme would be the withholding of appropriations, which could have major implications for the continued functioning of the judiciary. Finally, Congress could turn to existing laws to find ways to enforce ethical standards.

a) Impeachment. Congress is authorized to impeach a Supreme Court justice.152 This power has a twofold effect on the assessment of what Congress can do in the face of an unethical judge. On the one hand, this constitutional backing demonstrates the intent of the framers of the Constitution to ensure that the legislative branch retained some check on guarantees of tenure and salary. On the other hand, the authority to impeach may, by implication, exclude any other authority to discipline.153 However, the impeachment power cannot be the sole regulation of judges, since other limits on their behavior still apply, including criminal law.

In practice, “no Supreme Court justice has ever been [successfully] impeached and removed by Congress.”154 While some may argue that the threat of impeachment changes the behavior of judges, impeachment practically cannot be the only mechanism for Congress to regulate Article III judges, given the incredibly high barrier to initiating and completing impeachment proceedings.155

Some argue that impeachment is the only mechanism by which Congress can regulate the Supreme Court, to the exclusion of other statutes, even criminal ones.156 However, several federal appellate courts have concluded that a federal judge can be impeached without first being tried.157 In 1795, the House of Representatives declined to impeach Judge George Turner after the Attorney General decided to prosecute him, providing Founding-era evidence that the existence of the impeachment procedure does not preclude other laws, such as the criminal code, from reaching federal judges. 158

Impeachment is a blunt tool for Congress in its attempt to enforce ethical standards on the Court. Despite its crudeness, it has a solid basis in the Constitution, offering a legitimate foothold for Congress to enter the fray. However, given the polarization in the legislature, the difficulty of impeachment proceedings, and the post hoc nature of the remedy, it does not offer the most practical avenue for ethical regulation.159

(b) Appropriations. —Using its power over the purse, Congress could sanction and deter violations of ethical standards by Supreme Court justices. The Senate Appropriations subcommittee that oversees the Court’s budget has recently assessed its options for approving the Court’s 2024 budget.160 Senator Chris Van Hollen has proposed that the Senate could leverage the Court’s appropriations process to force the Court to commit to ethical standards.161

This issue is still politically alive, but it offers an avenue for immediate action to punish past violations of the Ethics Reform Act of 1989 and the Ethics in Government Act of 1978, among others. However, the appropriations power is an equally blunt instrument that risks compromising the Court’s ability to function at all.

(c) Enforcement of existing statutes. —

(i) Ethics in Government Act. —The Ethics in Government Act applies to all three branches of the federal government and sets forth rules relating to outside income and employment, gifts, and financial disclosure requirements. 162 Chief Justice Roberts is authorized, through the Judicial Conference, to issue regulations specifically for the Court. 163 While he does so, and although the justices file financial disclosures annually as required by statute, he has stated that the justices follow the EGA “as a matter of internal practice” and cautioned that the Court must yet rule on the legal applicability of the regulations to itself. 164 It is worth examining what might result from Congress declaring the EGA applicable to the Court, as well as the specific enforcement mechanisms that Congress could use to ensure compliance.

The Court need not have the first say on the applicability of the EGA to itself: Congress can declare today that the EGA binds judges. The resulting constitutional showdown could address the ethical crisis on the Court, no matter the outcome. Ideally, the Court would simply accept Congress’s interpretation. A constitutional question would be answered, and the move could restore some confidence in the Court. Alternatively, the Court could explicitly reject Congress’s interpretation. However, this outcome seems unlikely since the Court would not reach the constitutionality of this interpretation unless presented with an enforcement action or other case or controversy. In the unlikely scenario that the Court rejects any application of the EGA to itself, the question around ethics would crystallize. There is value in forcing the Court to take a firm position, rather than making statements to the media or vague allusions in year-end reports.165

In either scenario, Congress must act first. Under the EGA, judicial officials who “willfully fail to file or falsify their income tax returns are subject to referral to the Attorney General and may face civil penalties.”166 While many disagree on whether individual judges’ conduct meets the “willful” criterion for referral,167 a public referral to the Attorney General is a powerful enforcement measure and does not require an intense congressional investigation into the merits. By viewing enforcement as merely a publicized referral, rather than civil penalties per se, applying the EGA to judges is likely to be more politically palatable.

In general, violations of the EGA by any government official, including “knowingly and willfully falsifying” or “knowingly and willfully failing to file or communicate any information that such person is required to communicate,” are enforceable through a civil action brought by the Attorney General.168 The Attorney General, upon referral, may bring this civil action in “any appropriate district court of the United States.”169 The court in which the civil action is brought may impose a civil penalty, with the maximum possible penalty being $50,000.170 As an alternative or in addition to fines, the violator could even face imprisonment for up to one year for “knowingly and willfully falsifying… information.”171

In practice, bringing an enforcement action following a violation of the EGA by a judge would be complicated, given not only the concerns raised above, but also the role of the Judicial Conference in enforcing the EGA. The EGA establishes that the Judicial Conference is the proper body to refer potential violations to the Attorney General.172 The Judicial Conference has established a Financial Disclosure Committee, “consisting of [sixteen] judges from across the country,” which is accountable to the Conference at large.173 The Conference has delegated authority to the Committee “with respect to the implementation of the financial disclosure provisions of the Ethics in Government Act, including the review of financial disclosure reports and the referral of matters to the Attorney General. Allegations of errors or omissions in financial disclosure submitted to the Conference are referred to the Committee for review and appropriate action.”174 The Judicial Conference has rarely brought proceedings against lower court federal judges175 and has never referred a petitioner for “willfully falsifying” or withholding required disclosures.176

Congress need not sit idly by, however. Senator Sheldon Whitehouse and Representative Henry C. Johnson have both written publicly to the Conference requesting that the Committee refer Judge Thomas to the Attorney General for violating the EGA. 177 The Senate Judiciary Committee as a whole could make a statement and add further pressure to the Conference. Although an actual referral to the Attorney General is unlikely and even more unlikely that the Attorney General would act against a sitting Supreme Court justice, it is valuable for the Senate Judiciary Committee (or any Congressional body, for that matter) to make a public statement on the applicability of the EGA. Given the utter lack of clarity on the constitutional reasons against congressional intervention, a congressional statement might prompt the Court (or individual members) to state its reasoning and advance constitutional law in this area. Congress’s current silence on the constitutionality of the statute begets further silence from the Court.

(ii) Disqualification laws. — There are currently several disqualification laws that apply to Supreme Court justices.

178 28 U.S.C. Section 455, which has its roots in the late 18th century,179 requires any judge or justice to recuse himself or herself in a variety of circumstances, including, most notably, in cases of personal bias toward one of the parties or a financial interest in the matter.180

While there have been accusations that many justices have already violated this statute, Congress likely lacks constitutional authority to regulate Supreme Court decisions in this area because the decisions are inherently more judicial than, say, vacation plans or real estate transactions.181 Instead, Professor Louis Virelli argues that Congress needs to exert pressure using other powers (including investigations, appropriations, and other clear areas of constitutional authority) and thereby influence the Court to improve its recusal practices.182 While recusal issues gain public notoriety, Congress should not lose sight of where it has the strongest constitutional basis for action.

3. Delegation of lower-level federal judges. —The regulation of state supreme courts offers a glimpse into how the Supreme Court might function under some form of ethical oversight.183 Many states have an independent agency that enforces their binding code of judicial ethics not only on lower court judges but also on state supreme court judges.184 These commissions have the power to impose a range of sanctions, including removal from office.185

While these agencies are not a direct development of the states’ respective legislatures but are located within the judiciary,186 they offer a glimpse into how supreme courts might function under binding ethical regulation and enforcement. Justice Alito has stated “that it is inconsistent with the constitutional structure for lower court judges to review things Supreme Court justices do for compliance with ethical standards.”187 Justice Kennedy similarly implied that such a structure, in which lower court judges would have a say in judges’ ethics codes, would violate the Constitution.188 Neither of them, however, has offered any constitutional support for this position. Lower court judges weighing in on the issue of ethical standards raises no separation of powers issues. While unorthodox at the federal level, trial and appellate judges weigh in on the issue of nonjudicial standards in many states, whose constitutional orders have not yet collapsed. Given the crisis of legitimacy facing the Court, and if the justices remain averse to direct congressional oversight, allowing the other Article III justices to weigh in on the question of norms (and whether conduct violates those norms) offers a possible middle ground for ethics regulation.

Conclusion

The current ethical problems are symptomatic of a Court that has trampled on any attempt to limit its power. 189 The application of ethical standards in the Supreme Court cannot wait for the justices, nor should it wait for future legislation. The Court is not the only institution charged with interpreting the Constitution. The executive branch regularly makes constitutional decisions in exercising its power to ensure that the laws are faithfully applied. Congress faces a constitutional question every time it legislates. A looming constitutional question does not require inaction; if anything, it encourages action to push for its resolution. 190 While potential legislation is being debated,191 Congress can act now based on its own interpretation of the Constitution and the multitude of avenues it has to control the extrajudicial behavior of the justices. Initiating the conversation between Congress and the justices is the most viable way to restore the damaged legitimacy of this Court.