Does Congress have the power to govern the Supreme Court?

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:

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.

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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.

Kiobel: Corporations can be human rights violators, plaintiffs say in appeal to SCOTUScase at Court : SCOTUSblog

Major new corporate case at Court : SCOTUSblog: "A new appeal challenges the Second Circuit Court’s deeply divided ruling that foreign corporations cannot be sued in U.S. courts, under a 1789 law, for war crimes or human rights abuses.
Lawyers for 12 individuals seeking to hold major oil companies legally responsible for human rights abuses in Nigeria in the 1990s have asked the Supreme Court to overturn a federal appeals court’s ruling that corporations are immune to such claims in U.S. courts. The new petition, in the high visibility case of Kiobel, et al., v Royal Dutch Petroleum, et al., raises what may be the hottest international law issue now affecting business firms.
In essence, the case is a kind of ultimate test of what Congress meant when, as part of the first federal courts law in 1789, it gave U.S. courts the authority to hear claims by foreign nationals that they were harmed by violations of international law. The case also seeks to test what the Supreme Court understood the law to mean in its ruling seven years ago in Sosa v. Alvarez-Machain, an international abduction case."

The Assault on the Citadel: Yale & Harvard take the Supreme Court

Back in the days of the "gentleman's C"  Harvard and Yale were the cool colleges.  Ivy League and Preppie were the fashion models of my youth.  But in the days before US New & World Report, before college rankings, the choice of a college was a kind of local, or family, or ethnic thing.  Harvard took 100/year from Boston Latin and filled most of the remaining slots with New England prep schools and legacy admits.  I applied only  to Catholic schools -  Georgetown, Holy Cross, BC, Notre Dame, with Villanova as a safety school.  Harvard and Yale weren't in my field of vision: except as rivals on the athletic field - then, as now.  The choice of college did not seem very consequential. That was then.  But now that we see the domination of the Supreme Court we see another bit of evidence of how consequential these choices have become.


But is there more to it than the fact that in the last 24 years when the duopoly was established three Presidents have been Yale men and the current one a Harvard man?  The data is in Patrick Glen's paper Harvard and Yale Ascendant: The LegalEducation of the Justices from Holmes to Kagan.  The judgments are for you to make.


 h/t Catherine Rampell, Economix, NY Times