Does Congress Have the Constitutional Authority To Regulate the Justices of the United Supreme Court?

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Carroll Robinson
August 21, 2023

Interesting Question

The title to this piece raises an interesting constitutional question. The issue is also bigger than what the courts would normally characterize as a political question because it directly implicates the Article III independence of Supreme Court Justices and the Article I legislative power of Congress as opposed to the traditional clash between the legislative and executive branches of government.

History

At the beginning of our nation’s history when the Constitution of the United States was ratified, it was generally presumed that the United States House of Representatives would be the ultimate voice on what was and was not constitutional. Representatives were directly elected by the “People” every other year and as such were considered closest to the people and most reflective of their collective will and wisdom. In part, this was because the United States Supreme Court was not expressly granted the power of judicial review in the Constitution.

There was and still is nothing, in the Constitution, that gives the United States Supreme Court the express authority and power to determine what is or is not constitutional. 

That absentness of express authority has been the source of an ongoing historic, legal and political debate.

Limits & Marbury

The United States Supreme Court is, in fact, a court of limited constitutional jurisdiction and authority. Most of the Court’s jurisdiction and authority comes from statutes passed by Congress and customs developed over the years since the Court’s 1803 decision in Marbury v. Madison. 

The Marbury decision is the bright line pointed to by most legal scholars and historians as the inception point of the idea that the United States Supreme Court had the final (and authoritative) say on what is or is not constitutional. 

There are serious legal and constitutional debates and arguments about whether the Marbury decision even stood for the principle that the Supreme Court was taking onto itself, or could even constitutionally do so, the sole power to decide what was or was not constitutional. 

Vagueness

Congressman Tom Delay’s push for mid-decade redistricting in the early 2000s was the first time on a broad nationwide basis that most Americans first realized how little guidance (and how much vagueness) the Constitution contained. 

Most recently we once again saw constitutional vagueness during the 2020 presidential election certification process. Most of those constitutional deficiencies have still not been cured and will come back to haunt our nation in the years ahead, regardless of the political and ideological divisions in our body politic. 

Alito: He Said It

Currently, we are once again facing the vagaries of our nation’s Constitution as it relates to the power of Congress to legislate a code of ethics for the United States Supreme Court. 

Justice Alito has said Congress has no express constitutional authority or power to legislate and impose a code of ethics on Supreme Court Justices. 

The retort from Congress is that they do have the constitutional authority to do so, but interestingly in all the back and forth no one in Congress has pointed to a specific provision in the Constitution that gives them the authority to subject the Justices to a legislative code of ethics.

Response: 3 Options

1. In Article III of the Constitution Supreme Court Justices are constitutionally subjected to a “good Behaviour” standard to remain in office. That language gives Congress the constitutional authority to define and determine what is, and constitutes, “good Behaviour”. Congress can use that power to constitutionally legislate a code of ethics applicable to the Justices. 

• The United States Senate under its Article II (Section 2) power to “Advise and Consent” on Supreme Court nominees could use that constitutional authority to require future nominees to the high court to commit to subjecting themselves to a congressional approved code of ethics as a condition of confirmation. That could be done in the form of a constitutional binding-and legislatively enforceable-contract. This too would be constitutional as there is no limit on the Senate’s power to “Advise and Consent” where it is applicable other than illegality.

• Members of the United States Senate could respond to Justice Alito’s assertion with a novel constitutional tactic. 

If the votes were there Senators could push the constitutional boundaries by voting to repeal the “Advise and Consent” confirmation of a sitting Justice in an attempt to remove them from the Court without the need for invoking the two chamber, House and Senate, process of impeachment. 

Nothing in the Constitution prohibits the Senate from withdrawing its “Advise and Consent” for a Supreme Court Justice or any other presidential appointee that, under the Constitution, requires Article II Senate confirmation.

Yes, this is a novel and untested constitutional avenue, but, in recent years, we have been pushing and testing the outer boundaries of our Constitution’s limits. This may be a necessary option to protect the Court from itself and to help restore the confidence of the American people and the integrity of the Court and its Justices.

New Ground, New Limits & Old Arguments

Finally, any of the three options above will also require Congress to make it clear that they too, along with the Court, have a co-equal voice in determining what is or is not constitutional. 

Whatever the outcome of Congress’s debate with Justice Alito, we will be breaking new constitutional and political ground just as we have done with the legal debate over mid-decade redistricting and the ongoing political, legal and constitutional debate over the presidential electoral certification process. 

We will also end up revisiting old arguments dealing with who gets to decide what is or is not constitutional. These continue to be constitutionally ground-breaking times. 

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Author: Carroll G. Robinson, Esq. is an Associate Professor of Public Administration and Political Science at Texas Southern University’s Barbara Jordan-Mickey Leland School of Public Affairs. He is a graduate of The National Law Center at George Washington University in Washington, DC.

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