Controversy continues regarding the Supreme Court's failure to embrace for itself the Code of Conduct that binds lower court judges. A group of Democratic Members of Congress has called for hearings on HR 862 the Supreme Court Transparency and Disclosure Act. 120 law professors have called on Congress to advance legislation imposing the Code on the Supreme Court. (I am a signator.) But the Republican majority in the house will not move on the bill because the controversy is most heated regarding justices Scalia and Thomas whose conservative zeal inspires much of the fire.
The New Jersey Law Journal Editorial Board in a September 8, 2011 editorial took a cautious approach, urging the court to declare itself bound by the Code:
A recent paper by Stetson University professor Louis J. Virelli argues that separation of powers requires the Unconstitutionality of Supreme Court Recusal Standards. He is certainly correct that the Congress has long been deferential when it comes to the Supreme Court. But the recusal statute expressly extends to the Supreme Court. According to 28USC 455
Congressional authority is plain enough. The federal constitution, Article III § 1 declares “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”
Congress certainly can define what constitutes good behaviour. But things get complicated when enforcement mechanisms are contemplated. Who would judge and in what forum? And how would it be enforced - short of impeachment. The Law Journal board's call for the Court to heal itself is therefore a sound one.
The New Jersey Law Journal Editorial Board in a September 8, 2011 editorial took a cautious approach, urging the court to declare itself bound by the Code:
The Constitution structures the judiciary such that there is only one Supreme Court, and it makes its own rules and possesses the last word. For that reason, the Court should not be governed by legislation. Rather, as Justice Harlan Fiske Stone once observed, the only real check on an individual justice's exercise of power is his or her own sense of self-restraint. It is thus up to the Court to govern itself.
We would urge the Court to officially and publicly affirm its adherence to the code –– something that Justices Breyer and Anthony Kennedy have each already acknowledged in comments made at a recent congressional hearing –– and the justices should redouble their efforts to avoid engaging in activities that even appear partisan. The long-term legitimacy and esteem of the Court depends on it.
A recent paper by Stetson University professor Louis J. Virelli argues that separation of powers requires the Unconstitutionality of Supreme Court Recusal Standards. He is certainly correct that the Congress has long been deferential when it comes to the Supreme Court. But the recusal statute expressly extends to the Supreme Court. According to 28USC 455
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned..
Congressional authority is plain enough. The federal constitution, Article III § 1 declares “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”
Congress certainly can define what constitutes good behaviour. But things get complicated when enforcement mechanisms are contemplated. Who would judge and in what forum? And how would it be enforced - short of impeachment. The Law Journal board's call for the Court to heal itself is therefore a sound one.
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