By David B. Rivkin, Jr., and Lee A. Casey
Nov. 17, 2023, in the Wall Street Journal
If you look at the Supreme Court’s new Code of Conduct as an attempt to appease the justices’ antagonists in Congress and the media, it is a total and predictable failure. But in substance it is an important rebuke to those critics. “Congress must continue its efforts to hold the judiciary accountable,” Sen. Majority Leader Chuck Schumer tweeted in response.
The code and the justices’ accompanying commentary make clear that Congress has no such authority. The justices describe the court’s unique role in America’s constitutional system and affirm several important principles:
• The Supreme Court isn’t merely a part of the judiciary; it is its head. The Constitution vests the judicial power “in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Congress can no more subject the court to lower-court supervision, as some lawmakers have urged, than it can authorize a federal officer to review and reverse presidential decisions.
Moreover, aside from the impeachment power, the Constitution gives neither Congress nor the court as a whole disciplinary power over individual justices. The only substantive authority Congress has over the court’s judicial function is the power to legislate exceptions and regulations of its appellate jurisdiction.
• The decision to recuse oneself from a case is an “inherently judicial function.” As such, it is at the core of the court’s constitutional function and can’t be regulated in any manner by the political branches.
• The justices have a “duty to sit.” That means it’s improper for a justice to recuse himself from a case merely for convenience or to avoid controversy. As the justices state in the commentary, this duty is stronger for them than for lower-court judges: “The absence of one Justice risks the affirmance of a lower court decision by an evenly divided Court—potentially preventing the Court from providing a uniform national rule of decision on an important issue.”
• The “rule of necessity” requires the justices to decide a case if most or all of them would ordinarily be disqualified under the code. Recusal requirements must give way when following them would deny the litigants a judicial determination to which they are otherwise entitled.
It’s significant that all nine justices signed the document. After Justice Samuel Alito told the Journal in a July interview that Congress lacks the authority to regulate the high court, legal pundits speculated that other justices might disagree. Now all the court’s members have made clear that they share the same basic understanding of their constitutional role and authority. Any justice who disagreed could have dissented, so the code and commentary carry the same institutional weight as a unanimous decision.
The code makes plain that the justices recognize the importance of ethical constraints, but it also maintains the court’s independence, including the independence of its individual members, from recent efforts by Congress to aggrandize itself at the court’s expense.
Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.