After last June’s flurry of controversial rulings, public opinion of the Supreme Court fell to a historic low, with fewer than half of all Americans holding a favorable view of the Court. Though high profile cases like Jackson v. Dobbs, Students for Fair Admissions v. Harvard, and 303 Creative LLC v. Elenis are partially responsible for the nosedive in SCOTUS approval ratings, they’re not the only culprits. The ethical issues concerning the justices are just as liable for the high court’s legitimacy issue. In fact, seven out of the nine justices have received some sort of criticism for an array of ethical problems. The ideal way to restore the justices’ legitimacy would be to have them adopt their own code of ethics, but they’ve been largely unwilling to do that. In fact, two justices in particular have been outspoken about the proposed ethics code: Justice Alito claimed that “Congress lacks the power to impose an ethics code,” and Chief Justice Roberts refused to appear before the Senate Judiciary Committee to testify last April. If public opinion is plummeting, the justices are refusing to voluntarily adopt an ethics code, and our highest court is turning into a political organ, the question becomes: how do we repair the Court’s public image? Where do we go from here?
Constitutionally, the answer is to have Congress step in. There’s a single sentence in the US Constitution that creates the Supreme Court and gives Congress the power to “ordain and establish” inferior courts. But, Congress has the power to regulate the size, jurisdiction, and other administrative aspects of the Supreme Court, and has done so since 1789, when the first Judiciary Act was passed. When new justices are not being appointed, Congress alone has the power to regulate the Court—and it needs to be used now. The system of checks and balances that is the bedrock of our democracy is under attack when the justices refuse to adhere to ethics codes, and despite Congress not possessing the explicit power to force compliance, there is still sufficient precedent for our legislators to quell the high court’s legitimacy problem. In 1922, Congress established the Conference of Senior Circuit Judges, which was later renamed the Judicial Conference of the United States. It was established to regulate the actions of federal judges, which it still does today. This history of congressional regulation of the judiciary confirms that it is within Congress’s power to enforce an ethics code for the justices, ensuring the legitimacy crisis the Court is facing does not permanently tarnish its reputation and authority. Though the Judicial Conference of the United States only forces federal judges to abide by an ethics code, there is sufficient historical precedent of judicial regulation to expand this oversight to the Supreme Court justices. After all, Supreme Court justices have far more power than federal judges could ever dream of, so it’s common sense to regulate their ethics as strictly as we regulate the ethics of federal judges.
The way that many Supreme Court justices have simply dismissed the allegations made against them is unacceptable. When one branch of our government is crumbling, our entire democracy is under attack, so Congress must force nine of the most powerful people in the nation to adopt an ethics code. If we allow the Supreme Court justices to continue their habits of flagrant corruption, we will decimate the integrity of our democracy and judiciary beyond repair. There’s still time to save our high court, but Congress must act now.