Thanks to John Gramlich for chatting with me about whether Congress could impose a Code of Ethics on the Supreme Court. The story is here, behind a paywall. Here are my quotes.
While there is generally no constitutional controversy over Congress’ authority to set the number of justices and other structural components of the court, its imposition of ethics rules may raise a different legal question, said Josh Blackman, a constitutional specialist at the South Texas College of Law.
“Congress would have to rely on some sort of implied power [in the Constitution] to manage the judiciary. There’s no specific grant,” Blackman said. “The question is, would this implied power cover the ability to impose ethical constraints?”
A slight clarification–I meant to say Congress would have to rely on an implied power to manage the Supreme Court as part of the entire judiciary. The Congres certainly has the power to regulate the lower courts. Because Congress has no specific grant regarding the Supreme Court, there would have to be some sort of implied power to manage the judiciary as a whole, to include regulating the Supreme Court. How far that implied power reaches is an interesting question. Ministerial things, like setting the term calendar to begin the First Monday in October is good. What about setting the number of Justices? What about telling the Justices how to behave ethically?
Can you imagine if Congress passed a law in 1803 telling John Marshall he had to recuse from Marbury v. Madison because he personally failed to timely deliver poor Marbury’s commission? That would’ve been fun. Then Marshall could have said Congress lacks the power to add to our original jurisdiction, and tell us how to behave!
My previous thoughts on the constitutionality of the Supreme Court Ethics Act are here.