Imposing a code of ethics on the justices who serve on the Supreme Court is a political idea that — like much of the rest of American politics — has split proponents and opponents down the middle.

Justice Samuel A. Alito Jr. says neither Congress nor the White House is empowered to dictate conditions to the high court — and that any attempt to do so upsets the balance between the three coequal branches of government.

But Justice Elena Kagan says there must be room for some congressional meddling — otherwise the court becomes immune to the checks and balances the other branches of government face.

“We’re not imperial, and we too are a part of a checking and balancing system in various ways,” Justice Kagan said during an appearance at a judicial conference in Oregon earlier this month. “Congress, when it decides whether to pass legislation … ought to, and usually does, consider the constitutionality of its own actions.”

She acknowledged, however, that “the nine of us have a variety of views about this,” according to coverage of her remarks by The Associated Press.

The debate has come roaring to the forefront after a series of articles over the last year accusing some GOP-appointed justices of taking trips sponsored by wealthy individuals who may have business before the high court.

There are broader contours, too, as liberal activists decry the court’s recent landmark rulings on abortion, guns and affirmative action, yet have struggled to find an outlet for their anger. 

Hopes of either packing the court with more members, or of imposing term limits on the court have foundered, leaving activists itching to strike back at the justices and pinning their hopes to ethics legislation.

Carrie Severino, president of the Judicial Crisis Network and a former clerk for Justice Clarence Thomas, who has been the focus of most of the recent ethics articles, said liberal activists are trying to “bully the court.”

“This is part of a clear strategic and coordinated and calculated attempt to create the appearance of unethical behavior where there is not any and specifically because of rulings that upset particular members of Congress,” she said.

She said a bill Senate Democrats are advancing that is designed to impose a code of ethics on the justices is “unconstitutional.”

That’s the stance of Justice Alito, who told The Wall Street Journal this summer that the high court derives its power straight from the Constitution, not the laws of Congress.

“Congress did not create the Supreme Court,” he said. “No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”

But Carolyn Shapiro, a professor at Chicago-Kent College of Law and former clerk to retired Justice Stephen G. Breyer, said Congress has regulated the Supreme Court before, including its jurisdiction, and it makes sense that Capitol Hill can also impose ethics standards.

“A standard ethics code that tracks more or less what is in place with the lower courts seems to be, to me, well within Congressional authority,” she said.

Senate Democrats share the same view.

In a party-line vote, they pushed legislation through the Judiciary Committee last month that would require the court to come up with a code of ethics and a system to police the justices’ adherence. The justices would also be prodded to do more to explain their decisions on whether to recuse themselves from hearing a case.

Given the close division of power in the Senate and the GOP’s control of the House, Sen. John Kennedy, Louisiana Republican, said the Democrats’ bill is “as dead as fried chicken.”
Justice Thomas, the court’s most senior member, has been the focus of most of the ethics scrutiny after ProPublica reported that Harlan Crow, a major GOP donor, paid private school tuition at Hidden Lake Academy and Randolph-Macon Academy for Justice Thomas’ great-nephew, whom the justice took in to raise at the age of 6.

The tuition total could have cost more than $150,000, according to ProPublica. Justice Thomas did not disclose the payments in his financial disclosure forms, and the news outlet suggested that runs afoul of ethical standards required of federal judges on lower courts.

Other reports by ProPublica, The Washington Post and The New York Times questioned other arrangements, such as GOP-appointed justices collecting generous salaries to teach at George Mason University’s Antonin Scalia School of Law.

Justice Thomas has defended his friendship with Mr. Crow, and said he consulted with colleagues about disclosure requirements and didn’t skirt any rules.

In June it was Justice Alito’s turn, as he published an op-ed in The Wall Street Journal pre-butting a forthcoming piece accusing him of ethics violations.

Chief Justice John G. Roberts Jr. has said the court generally follows the code of ethics that is binding on lower courts.

He said all justices must file disclosures that are reviewed by the Judicial Conference Committee on Financial Disclosure and follow what lower courts do with recusals. But he noted that the system is flexible, given the composition of the high court.

He also said the justices have faced increased threats. He said they sometimes do not disclose justices’ travel arrangements for security reasons.

The chief justice has rebuffed calls by Senate Democrats to testify to Congress, saying that would upset the balance of power between the branches.

Instead, he submitted a letter to the Senate Judiciary Committee with a statement of ethics principles and practices the court follows. It was signed by all nine current members.

That statement laid out rules governing outside income, teaching and recusals. It also noted that because of security issues, justices sometimes do not report travel.

Mike Davis, president of the Article III Project and a former clerk to Justice Neil M. Gorsuch, said the statement amounted to a united front.

“Any Democrat justice who now deviates from that unanimous statement looks like they are dipping their toes in the political waters,” he said.

The Constitution says justices serve as long as they exhibit “good Behaviour” but lays out few other limits on the high court, other than that members can be impeached.

The founding document does give Congress power to create lower courts, and Chief Justice Roberts, in his 2011 end-of-year report, said that is why Capitol Hill can impose ethics rules on district and circuit court judges.

“That reflects a fundamental difference between the Supreme Court and the other federal courts,” he wrote.

He said Congress has in the past directed justices to comply with financial reporting requirements, which the court’s members do voluntarily. But, the chief justice said, the court itself has “never addressed” whether Congress has the power to impose that.

-Stephen Dinan contributed to this report.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.