Several members of Congress have proposed a new law, the Supreme Court Ethics Act of 2013, that would apply the Code of Judicial Ethics to the Justices of the Supreme Court.

The bill would make the Code of Conduct for United States Judges mandatory for the Supreme Court. The code, which guides the behavior of lower federal court judges regarding recusals, fundraising and demeanor, has never applied to the justices themselves, although they have said that they look to it for guidance.

But is it constitutional? In his 2012 annual report, Chief Justice Roberts hinted that such a law would not be.

The Code of Conduct, by its express terms, applies only to lower federal court judges. That reflects a fundamental difference between the Supreme Court and the other federal courts. 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.

This is written, perhaps intentionally, much more nebulously than the Chief usually would. But the implication is that because Congress lacks the power to create the Supreme Court (that is done by the Constitution), it lacks the power to regulate it through a code of ethics, or create a Judicial Conference to manage it. In other words, lacking the greater power to create the court implies that Congress lacks the lesser power to regulate it. I don’t find that argument, by itself, too persuasive. What the Chief was loathe to say, especially in something as innocuous as an annual report, is that the Constitution gives Congress no power to regulate the Supreme Court, only those of the lower court.  Instead, he just implies this.

One other possible argument. The text of the constitution gives Congress the power to make exception to the Supreme Court’s jurisdiction.

In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

So, perhaps, expressio unius (if that even applies to the Constitution), no other exceptions can be made. In contrast, Congress has plenary powers over the inferior courts it can create, except with respect to appointment and removal of federal judges.

H/T Ted Frank