Kentucky Democratic Rep. John Yarmuth wants the U.S. Supreme Court to abide by a set of ethical guidelines similar to other federal judges.
Yarmuth is co-sponsoring the Supreme Court Ethics Act of 2013, which would require the High Court to adopt a code of conduct.
“Federal judges are appointed for life. If you have ethical lapses or conflicts of interest as a legislator the voters vote you out. There is no accountability for justices and it seems to me with just on general principles but also in light of some recent, questionable activities by some of the justices this would be something that is very, very important,” says Yarmuth.
Democrats pushing the measure point to the political activity of conservative Justices Clarence Thomas and Antonin Scalia as reason to have the rules. Both Thomas and Scalia attended a Koch Industries fundraiser three years ago and a dinner fundraiser event for the Federalist Society in 2011.
The measure strikes not only a partisan political cord—no Republicans have co-sponsored the bill—but a possible legal questions regarding the separation of powers.
Chief Justice John Roberts opposes the measure, arguing because the U.S. Constitution and not Congress created the High Court. Thus, justices are exempt from any rules lawmakers would mandate.
The Code of Conduct, by its express terms, applies only to lower federal court judges. That reflects a fundamental difference between the Congress instituted the Judicial Conference for the benefit of the courts it had created.
Because the Judicial Conference is an instrument for the management of the lower federal courts , its committees have no mandate to prescribe rules or standards for any other body.
Roberts goes on to say the justices regularly consult ethical standards of the judiciary, but he has rejected requests by Congress to subject the Supreme Court to those rules.
Legal experts say the court has been under the microscope as of late and is viewed more with partisan lenses.
“The U.S. Supreme Court is under a great deal of political scrutiny even though it’s purportedly simply applying the law. We see that scrutiny when people read into court’s decisions (saying) things like: ‘This is a pro-business Court,’” says Russell Weaver, a University of Louisville law professor. “Perhaps (Roberts) feels that the current system functions effectively, and he doesn’t believe that there is a need for formal rules that folks can point to any say: ‘Hey, look, there appears to be a violation of the rules.’”
Congress does have the authority to impeach a sitting justice for legal or ethical misconduct, but it that has occurred just once—Justice Samuel Chase in 1804—in the country’s history. Others question if Congress has the authority to regulate the Judicial Branch at all.
Yarmuth says because lawmakers set compensation for the justices it should be able to create needed ethical guidelines.
“Obviously, Justice Roberts has his opinion and I know he’s not supportive of this. But my personal opinion is that it seems Congress does have the authority to certainly suggest that they do this anyway,” he says.
Yarmuth isn’t the only member of Kentucky’s federal delegation taking on the Supreme Court in a proposal.
Republican Sen. Rand Paul proposed a Constitutional amendment he says is aimed in part at Roberts for his decision upholding the president’s health care law last year.