Editor’s note: The following is an excerpt selected by Professor Frost from her full 49-page research paper. The paper is available at the Social Science Research Network (registration is required) at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2304287.

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In his mild-mannered way, Chief Justice John Roberts has set the stage for a constitutional conflict between Congress and the Supreme Court. Roberts’ 2011 Year-End Report on the Federal Judiciary focused on judicial ethics, a subject that has been much in the news lately.

Link: Read Year-End Report

In the course of that year, several of the Justices were publicly criticized for their alleged involvement in political fundraisers; acceptance of gifts and travel expenses paid for by groups with political viewpoints; failure to report a spouse’s employment; and, most controversially, refusal to recuse themselves from the constitutional challenges to the health care reform legislation despite alleged conflicts of interest.

Existing laws already cover some of this claimed misconduct, and the spate of negative publicity inspired the introduction of new federal legislation that would further regulate the Justices’ behavior.

Roberts’ Year-End Report acknowledged these accusations of impropriety, as well as the legal framework that governs in this area. Then, in a shot across Congress’s bow, he stated that the Court had “never addressed” Congress’s constitutional authority to prescribe ethics rules for the Supreme Court—which many took to be a broad hint that, at least in the Chief Justice’s view, Congress lacks that authority.

To be sure, the Chief Justice was careful to note that his “judicial responsibilities preclude [him] from commenting on any ongoing debates about particular issues or the constitutionality of any enacted legislation or pending proposals.”

But he went on to say that the “Court has never addressed whether Congress may impose [ethical] requirements on the Supreme Court,” and noted that the constitutionality of the recusal statute in particular has “never been tested.” With those words, Roberts put the nation on notice that Congress’s authority to regulate the Justices’ ethical conduct is an open question.

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The Chief Justice’s Report raises serious questions about the constitutional status of existing ethics legislation, as well as the Supreme Court Justices’ willingness to abide by laws that at least some of them may consider to be invalid, and thus non-binding.

Currently, federal legislation requires that the Justices recuse themselves from cases in which they have a conflict of interest, mandates that they file annual reports in which they publicly disclose many aspects of their finances, and bars them from accepting money for most outside employment.

Although the Justices appear to follow these laws, the Chief Justice’s Report suggested that he is not sure they have to.

His comments also cast doubt on the constitutionality of the Supreme Court Ethics Act of 2013, which was recently introduced by Representative Louise Slaughter and Senators Chris Murphy, Richard Blumenthal, and Sheldon Whitehouse. Although the Chief Justice’s Report has provoked vociferous responses from those on either side of the issue, thus far there has been little academic analysis of the constitutional issues involved.

Although the Constitution requires that there be a Supreme Court, it did not make that institution self-executing, nor did it give the Court the power to control its internal operating rules, as it does for the House and Senate.

Thus, Congress is authorized—perhaps even required—to enact legislation implementing the judicial power under its Article I authority to “make all Laws which shall be necessary and proper for carrying into Execution . . . all other powers vested by this Constitution in the Government of the United States.”

For example, vital matters such as the Court’s size, the dates of its sessions, and quorum requirements are absent from the Constitution, and thus have always been controlled by federal legislation.

Indeed, a federal statute requires that each newly confirmed Justice “solemnly swear” that she will “administer justice without respect to persons, and do equal right to the poor and to the rich” before taking her place on the Court.

Ethics statutes, which promote the effective and legitimate exercise of the “judicial power,” thus must be understood as part and parcel of Congress’s broader power to establish the federal courts and control judicial administration.

That said, Congress’s power to regulate the Supreme Court’s ethical conduct is limited by separation of powers concerns and the need to preserve judicial independence.

Federal legislation, whether it concerns ethics or other aspects of judicial administration, cannot seek to control the outcome of pending cases.

Congress would obviously be well outside its constitutional authority, for example, if it enacted a law providing that all Justices appointed by a Republican president must recuse themselves from cases challenging the constitutionality of federal legislation.

In short, ethics legislation cannot be used to control the content of judicial decisions, or to penalize the Justices for their decisions in previous matters.

Finally, Congress must take care to preserve the Supreme Court’s constitutional status as the head of the judicial branch.

The Supreme Court is the only constitutionally required court, and the Constitution specifies that the lower courts are “inferior to” the Supreme Court.

Thus, it is constitutionally questionable whether Congress could, by statute, alter the judicial hierarchy by giving lower court judges the power to force a Justice to recuse him or herself, or penalize a Justice for an ethical violation.

However, none of the existing ethics statutes give the lower courts any such authority over the Supreme Court, or otherwise threaten its role at the head of the federal judiciary.

Furthermore, the Supreme Court’s special constitutional status does not insulate the Justices from regulation of their ethical behavior—after all, Congress has enacted similar statutes affecting the President and Vice-President of the United States without causing any constitutional crisis.

In sum, Congress has considerable leeway to regulate the Justices’ ethical conduct, just as it has exercised authority to decide other vital administrative matters for the Court, as long as it does not interfere with the Court’s decisional independence or the Court’s role as the head of the third branch of government.

Constitutional questions are frequently raised by opponents of legislation seeking to regulate the Justices’ ethical conduct, distracting from the policy questions that are also worthy of debate.

Hopefully, the above discussion (and the full essay at SSRN) will help to clear away the obstacles that have too often prevented a full and frank discussion of whether the benefits of such legislation outweigh the costs.

Amanda Frost is a professor of law at American University’s Washington College of Law. She writes and teaches in the fields of federal courts, civil procedure, statutory interpretation, judicial ethics, and transparency in government.

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