C.J. Roberts' 2011 Year-End Report

Chief Justice Roberts’ 2011 Year-End Report on the Federal Judiciary is addressed to “whether the Judicial Conference’s Code of Conduct for U.S. Judges should apply to the Supreme Court.”  There are, of course, some assurances in the Report that the “Justices today use the Code for precisely [the same] purpose” as do lower federal judges, and also that the Justices follow applicable statutes regarding recusal, financial reporting, and the receipt of gifts.  But, apart from those disingenuous assurances, there are two items that are worth noting.

The lesser important one is that Roberts says that the Justices “may consult precedent, consider treatises and scholarly publications, and seek advice from other sources, including judicial colleagues and the Judicial Conference’s Committee on Codes of Conduct.”  Elsewhere, he also includes the Court’s Legal Office and disciplinary decisions. Unlike Justice Breyer in his testimony before the Judiciary Committee, however, Roberts does not specifically mention seeking approval from an ethics professor.

More important is Roberts’ comment, almost in passing, that “the limits of Congress’s power” to impose recusal, financial reporting, and gift limitations on the Supreme Court (as distinguished from the lower federal courts)  “have never been tested.”  I believe that if those limits are ever tested, the Court will decide that Congress has no such power regarding the “judicial Power of the United States,” which Article III vests in the “one supreme court” that the Constitution itself creates.  And I think that would be the correct decision.

Comments

[Stephen Gillers]

This is also addressed in John Steele's Jan. 1 post and comment thereto.

[Patrick Hanlon]

If that is true, does it apply to the Inferior Federal Courts? The Judicial Power of the United States is NOT invested in one supreme court, but in one supreme court and such inferior courts as Congress may from time to time establish. Conversely, if Congress can, say, impose certain financial reporting requirements on district judges and judges of the courts of appeals, can those requirements be imposed on the justices of the Supreme Court? If so, why not recusal requirements. I don't think the text of article III is much of a guide here.

[Steven Lubet]

I don't think Roberts's comment was casual or in passing. I think he was very much drawing a line in the sand, although politely.

As to the merits of Roberts's position, there is a significant difference between a recusal statute and statutory gift and disclosure regulations. There is no doubt, I hope, that Congress has the power to set the justices' compensation (so long as it isn't diminished during office). Gift and financial disclosure requirements seem pretty clearly related to that power -- all part of a package.

Recusal, in contrast, is a judicial function, so there is a better argument that it is part of the judicial power and therefore to be exercised only by the court. On the other hand, Congress must have some authority over justices' participation. is there any doubt that Congress could criminalize participation by a justice who had recently received a large cash gift from a lawyer or litigant. Otherwise, impeachment would be the only remedy for bribery.

Finally, it is pretty obvious that the justices do not consider themselves truly bound by section 455 -- given that they keep invoking the "duty to sit," even though the statute was intended to abolish it.

[Monroe Freedman]

Steve Lubet's points make a lot of sense to me.

I think the distinction here, between the Supreme Court and the lower federal courts, is that the Constitution itself creates the Supreme Court, while Congress creates the other federal courts (see also I,8,9). Congress is therefore more limited in imposing restrictions on the Supreme Court.

What intrigues me most in this area is the idea that Congress can limit the jurisdiction of the lower federal courts, but can limit the jurisdiction of the Supreme Court only to the extent that the Constitution expressly says so. E.g., Congress can limit the Supreme Court's appellate jurisdiction (I,2,2). Thus, with regard to habeas corpus, Congress can limit the Supreme Court's jurisdiction, but only with regard to appeals. But, with regard to original jurisdiction of the Court, Congress can limit habeas only to the extent expressly provided in I,9,2 (cases of rebellion or invasion). Otherwise, there would be no check on Congress's violation of I,9,2.

[S]

One of the wonderful things about the legal profession is that it has a self-regulating ethics system. Could the Justices themselves make the rules binding on the Supreme Court? Perhaps through a standing order? An action by the Court, on the Court, would maintain the independence of the judiciary but also give everyone confidence that Justices are actually bound by ethics rules. At least that would have precedential value for the future, yes? The problem of enforcement remains, but would this be an option?

[Monroe Freedman]

They could make rules that purport to be binding on the Court, but I am sure that they wouldn't enforce them against each other. One problem is that they have to live with each other despite strong disagreements on judicial philosophy. (See Black-Jackson feud, which no Justice will want to see repeated.) Also, any enforcement against a colleague would in effect be a vote for enforcement against oneself (and a majority of them have already shown a predilection to break rules that they purport to follow).