The New York City Bar Association has determined that the U.S. Constitution grants Congress the power to enact “binding and enforceable ethics rules” for members of the Supreme Court, adding to calls for the nation’s highest court to face reform after a string of scandals.
In a report released on Monday, the New York City Bar said that lawmakers have the power to act on Supreme Court reform under three provisions in the Constitution, including the Necessary and Proper Clause in Article I, which the City Bar said is the “clearest basis for congressional authority to enact a binding ethics code for the Supreme Court.”
The clause in question states that Congress has the power to make “all Laws which shall be necessary and proper” related to legislative powers as well as “all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
“This provision expressly authorizes Congress to make laws to implement the coordinate branches’ powers,” read a release that accompanied the City Bar’s report on Monday.
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The City Bar also assessed that the impeachment provision in Article II grants Congress the power to hold justices to a code of ethics, as the provision “lies at the heart of our system of checks and balances.” The report also pointed to the provision in Article III of the Constitution, which states that a judge may remain in office only under “good Behaviour.”
The report comes as President Joe Biden and other Democrats are pressing for High Court reform, including the introduction of term limits for justices and holding the court to an enforceable code of conduct. Such calls have been driven by a slew of controversies involving conservative Justices Samuel Alito and Clarence Thomas, who have both been accused of accepting luxury gifts and vacations from wealthy GOP donors without properly disclosing them on federal financial forms.
The justices have also faced questions over their potential partisanship to former President Donald Trump. In July, the Supreme Court ruled the former president was protected from facing criminal charges for measures he took related to his “official acts” in office under presidential immunity, a wrench in the several criminal cases Trump faces while running for a second term in the White House.
Thomas has been called to recuse himself from cases related to the aftermath of the 2020 presidential election due to his wife, conservative activist Ginni Thomas, pressuring officials to overturn Trump’s 2020 election loss to President Joe Biden.
Alito has also faced recusal calls after The New York Times reported that two separate symbols related to efforts to overturn the 2020 election were seen outside of the justice’s homes after the January 6 attack on the U.S. Capitol waged by Trump supporters.
The Supreme Court did adopt its first code of ethics in November 2023, which mimicked many of the standards to which lower court judges are held. But Democrats have argued that the code does not go far enough, given that there is no outside body to hold justices to its standards.
The City Bar wrote in its report that the “need for Supreme Court Justices to comply with the highest ethical standards is a nonpartisan issue because, as the Supreme Court itself has emphasized, public confidence in the integrity and neutrality of the courts is a bedrock principle of the rule of law.”
“There has been an erosion of confidence in the Supreme Court and doubt has grown about whether it complies with the ordinary rules of ethical behavior that apply to other judges,” read the report’s conclusion.
The City Bar added that it would “welcome having the Court itself meaningfully address the continuing need for Supreme Court ethics reform,” but that the court’s “voluntary and unenforceable 2023 Code makes clear that at least some of the Justices feel free to ignore the laws already passed by Congress to regulate their ethical obligations.”
“It is time for Congress to act to reassert its primary law-making role and to guarantee that the Justices of our highest Court exhibit the ‘good behavior’ that the Constitution requires of all of them as a condition for remaining in office,” the report concluded.
Newsweek reached out to the Supreme Court’s public information office via email for comment on Wednesday.
Republican lawmakers have furiously pushed back on calls to reform the Supreme Court, arguing that doing so would be a breach of the separation of powers between the branches of the federal government.
House Speaker Mike Johnson in July said that Biden’s plans for reform would be “dead on arrival” in his chamber of Congress, arguing that the proposals were an effort to “delegitimize the court.”
“This dangerous gambit of the Biden-Harris administration is dead on arrival in the House,” Johnson said in a statement at the time.
Trump has also bashed calls for Supreme Court reform, writing in a post to Truth Social in mid-July that Biden’s proposals were “unconstitutional.”
“The Democrats are attempting to interfere in the presidential election, and destroy our justice system by attacking their political opponent, me, and our honorable Supreme Court,” the former president wrote. “We have to fight for our Fair and Independent Courts, and protect our Country.”
