In his 2011 Year-End Report on the Federal Judiciary, Chief Justice John Roberts cast doubt on Congress’s authority to regulate the Justices’ ethical conduct, declaring that the constitutionality of such legislation has “never been tested.” Roberts’ comments not only raise important questions about the relationship between Congress and the Supreme Court, they also call into question the constitutionality of a number of existing and proposed ethics statutes. Thus, the topic deserves close attention. This Essay contends that Congress has broad constitutional authority to regulate the Justices’ ethical conduct, just as it has exercised control over other vital aspects of the Court’s administration, such as the Court’s size, quorum requirement, oath of office, and the dates of its sessions. The Essay acknowledges, however, that Congress’s power to regulate judicial ethics is constrained by separation of powers principles, and, in particular, the need to preserve judicial independence. Furthermore, legislation directed at the Supreme Court Justices in particular must take into account the Court’s special status as the only constitutionally required court, as well as its position at the head of the third branch of government. Although these are important limitations on Congress’s power, existing and proposed ethics legislation fall well within them.
Amanda Frost, Judicial Ethics and Supreme Court Exceptionalism, 26 Georgetown Journal of Legal Ethics, 443–479 (2013).