“Don’t raise any unnecessary questions” is what Justice Breyer told a House Appropriations subcommittee on March 14, 2013, when asked whether Congress should consider legislation that would require the Supreme Court justices to be bound by the same code of ethics that the rest of the federal judiciary is required to follow.
The question is far from unnecessary, though. The nine justices makes decisions that affect the lives of Americans everywhere – where we can pray, who can vote, who can marry and the extent to which our businesses are regulated, not to mention issues of life and death. They are the highest legal authority in the land and should be held to the highest ethical standards. And each of the current justices has made at least one questionable ethical decision since joining the court, whether on a recusal or lack thereof, a disclosure omission, outside income or something else. So the question is absolutely necessary.
Further, Congress has broad power to legislate the size and makeup of the court. So this separation-of-powers “question” Breyer may also be referring to here is not really a concern.
Justice Breyer went on to say at that hearing that he has a seven-volume guide to legal ethics and “calls up some ethics professors” if he still has a question as to whether or not he should hear a case in which he may have a conflict of interests.
But “consulting” an ethical code is not the same “being bound” by it.
Fix the Court is calling on Chief Justice Roberts and his colleagues to formally adopt the code of ethics – called the Code of Conduct for United States Judges – that all other federal judges are required to follow. Should they demur, we believe Congress has the authority to compel the justices to adopt the code.