I ran across a poll on a social media platform essentially posing the question: “Should America’s highest court have a mandatory ethics code?” It is an intriguing question seeking input regarding public opinion. Many voted a resounding "yes." There was also a recent report issued by the U.S. Senate Judiciary Committee, following its almost two-year investigation.
However, despite some apparent eagerness to impose such a standard or code, a reasonable argument suggests any such imposition must be by the court's own definition and action. Similarly, any enforcement would necessarily have to be at the court's action unless pursuant to some higher authority, such as the Constitution that created the court in the first place.
The constitution establishes three co-equal branches of government. Despite that, some critics argue that this was not the Framer's intent. A 2021 Op-ed argues they always intended a legislative supremacy in our government. That author's perspective is argument centered on legislative power and the absence in the Federalist papers of the word "coequal," as regards the branches.
The author there is perhaps at odds with the courts themselves. The court's website proclaims: "The U.S. Constitution establishes three separate but equal branches of government." In addition to that perspective, there is no Constitutional basis that suggests that any of the three is superior in some part to either of the others. The idea of any of them providing definition or delineation for another could certainly be seen as threatening that “equal” element rally.
The Constitution has examples of clear "checks and balances." Ready examples are which legislative chamber must originate spending bills, Senate confirmation of treaties, and more. We have seen an Executive branch make war without Congressional declaration (an enumerated power), but also seen Congress withhold funding (a "power of the purse").
That said, we see various examples of interconnectivity or interdependency among the branches already.
The Constitution says there will be federal courts, Article III., "shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." In that, we see little established (one court), and perhaps much enabled instead. In that, we see an intended and specific ongoing involvement of Congress ("as the Congress may").
And Congress did, of course. See the Judiciary Act of 1789. More recently, there was another Judiciary Act of 2023. Congress has periodically addressed the number of courts, budget issues, jurisdiction definitions, and more. There has been Executive disagreement evidenced recently, illustrating the give and take of the enumerated Veto power.
Over decades, there has been similar give and take on various issues of the law, such as sentencing guidelines, delegation of powers, and more. But some would question whether any of those implicate a deep procedural authority over the Court(s). In fact, the federal rules of evidence (1972), the federal rules of civil procedure (1937), and the federal rules of criminal procedure (1944) have all been around for decades. One might note also that Congress has also acted in parallel in some instances, see 28 U.S. Code § 2074 (evidentiary privileges).
Some would insist that this Congressional influence on the management and budget of the courts suggests an authority to regulate more broadly. That argument is usually voiced with a deference to Congressional authority over the facilities and budgeting of all three branches. Those adopting this argument would likely focus on a litany of examples in the U.S. Code over the years.
Others would argue that such housing and budget, even jurisdiction, is clearly within the stated: "Congress may from time to time ordain and establish." They would suggest that the absence of any further specific grant to Congress of regulatory authority over the federal courts is itself dispositive. These would argue that the inclusion of something specific excludes anything else by implication (inclusio unis est exclusio alterius).
Some would argue based on the volume of attention alone. On the weight of effort, they would proclaim Congress supreme. The framers of the Constitution spent a significant time, and words, establishing and defining the legislative branch. Its authorities, constraints, and interactions are by far the most detailed of the three branches.
Congress is created and empowered by Article I of the Constitution. It is 2,271 words. Article II defines the Executive branch. This is less than half as long, 1,028 words. The Courts are created ("Shall ...be one supreme court") and "envisioned" ("and in such inferior courts") in Article III. It is a mere 280 words. Those who gathered in Philadelphia in 1787 to remedy the Articles of Confederation and instead drafted a Constitution seem to have been more legislature-focused.
Factually, the role of the U.S. Supreme Court is somewhat ill-defined. It was essentially the Court itself that decided what responsibilities it would shoulder. The analysis came in the midst of a growing nation and has faced some criticism and cynicism over the decades. See Marbury v. Madison, 5 U.S. 137 (1803). In my old age, I will perhaps write a children's book on the intrigue and politics of that foundational bedrock. Some have found fault with Marbury over the years.
In our system of co-equal branches of government, there is room for, perhaps expectation of, conflict or at least friction. Neither the Court nor the Executive is engaged in the how and why of Congressional discipline of its members. And that has been an interesting topic over the years.
There have been some intriguing instances of challenged elected representatives, as reported by the British Broadcasting Corporation. The folks at WikiRumor (copyright 2024) publish a more extensive list. We see some illustration of that process even more recently, though some might argue Congress lacks ethics authority over non-members. Nonetheless, an ethics investigation or report is not necessarily an action, but perhaps only words.
Would a Congressionally-created Judicial Code be of import? Would the courts accept it? Might Congress mandate requirements or definitions for the Courts? On the other hand, would it be appropriate for the Court to draft a code of conduct for the Executive and Legislative?
The final answer is likely that each branch is responsible for the how and why of its own sphere of business. It is unlikely that any of the three might effectively impose a code on either of the others. Despite critics, the branches are co-equal, in a constant state of ebbing and flowing friction and harmony.
The discussion is interesting. Nonetheless, the end result of "can Congress" it or "can't Congress" would seemingly come down to some interpretation of enumerated powers, and those appurtenant thereto. Interestingly, in the end, the Court would interpret the constitutionality of any such enactment, see Marbury.
At most, seemingly, Congress might draft and adopt some standard pursuant to its authority of Impeachment and trial. Perhaps Congress could define the terms it sees in "high crimes and misdemeanors" as the foundation for impeachment. Nonetheless, any such definition would find its future in the hands of this or that political majority, coalition, or situation. Some might see both benefit and peril in such an enactment.
Of course, such a code could be created by those who conveyed the powers upon all three branches. It is, after all, "we the people" who created this government some 250 years ago. If sufficiently motivated, we have seen the people alter the Constitution twenty-seven times, whether for good or ill. Until and unless that ultimate authority acts, the existing government must progress or not within the powers that have been granted by the people and entrusted by them in their government.
Therefore, as interesting as the online polls and late-night comedians may be, the foundation for any attempt at either the Executive or Legislative imposing its will on the Courts seems as uncertain and unpredictable as the Court imposing its ethical or procedural will on either of the them.
In this, one cannot forget the history of intriguing interaction between the branches. Andrew Jackson was less than persuaded by the Supreme Court decision in Worcester v. the State of Georgia, 31 U.S. 6 Pet. 515 (1832). Keeping his own counsel, President Jackson chose simply to ignore the Court. In doing so, he sarcastically suggested the Court enforce its own decision. Thus, friction is illustrated and reminded.
Might a president similarly elect not to enforce a Congressional action, such as imposing some penalty or consequence on the Court members under a legislative Judicial Code? Might the Court simply declare such an intrusion unconstitutional? Might the president merely veto such an enactment in the first instance? The effort and anguish of such processes and debates are intriguing and potentially distracting.
The potentials are intriguing. The implications could be as discussed above or perhaps far beyond the thoughts that occur to me in my little corner of the world. Nonetheless, there remains a potential for criticisms to persist between and amongst branches of government, the partisans of the fourth estate, and perhaps even the people. It is, indeed, an intriguing time to live.
