Constitution Check: Do the Supreme Court and other federal courts need a watchdog?
Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at an effort by Senator Charles Grassley to create an inspector general to monitor the Supreme Court and other federal courts.
Charles Grassley
THE STATEMENT AT ISSUE:
“Ensuring a fair and independent judiciary is critical to our constitutional system of checks and balances. An independent watchdog for the federal judiciary will help its members comply with the ethics rules and promote credibility within the judicial branch of government. The bill [I am introducing] will not only help ensure continued public confidence in our federal courts and keep them beyond reproach, it will strengthen our judicial branch. The Judicial Transparency and Ethics Enhancement Act would establish an Office of Inspector General for the judicial branch.”
– Excerpt from remarks by Senator Charles Grassley, Iowa Republican and chairman of the Senate Judiciary Committee, when he introduced S. 1418 on May 22.
WE CHECKED THE CONSTITUTON, AND…
The founders who wrote the Constitution were committed to separating the powers of government at the national level, but they also sought to balance that with methods by which each branch could block the assumption of too much power or the abuse of power by the other branches. It is supposed to be a workable balance, and that depends upon each showing respect – but not too much – for each other’s independence.
The judicial branch, under this system, is entitled to decide cases without being told by the president or Congress what the outcomes should be. But the courts cannot recruit their own members, or write new laws that they think might be useful, or raise and spend money as they see fit. For each of those, they must depend on one or both of the other branches.
Acting within the judicial sphere, the Supreme Court and the lower federal courts are assured of independence by the dual protection of lifetime tenure for the Justices and judges, and the guarantee that they can keep their jobs unless they commit a “high crime or misdemeanor” that would justify their removal by impeachment.
But impeachment is a drastic remedy, and the Constitution deliberately makes it hard to bring about. That gives the Justices and judges, in their day-to-day work, the freedom to regulate their own ethical conduct. Congress has given the judges some rules for when they should not take part in a decision because of a conflict of interest. But the Supreme Court has largely exempted itself from those rules, preferring to impose some self-limiting restraints. And that streak of independence by the Supreme Court from time to time rankles some members of Congress, who would like to do something about it.
The latest idea in Congress to impose some restraint on judicial behavior has just been introduced by the chairman of the Senate Judiciary Committee, Iowa Republican Charles Grassley. His idea is to create the office of “inspector general,” a kind of super watchdog, inside the judicial branch. It works in the Executive Branch, he says, and so there is no reason it should not work in the judiciary, too.
While the senator appears to be most interested in having someone to monitor serious misconduct within the judicial branch, perhaps as a prelude to impeachment, the constitutionally risky part of his proposition is to make this new watchdog a monitor of judicial ethics. That, of course, is part of the title of his new bill, the Judicial Transparency and Ethics Enhancement Act.
As Grassley has fashioned the terms of this office, the watchdog would not be a creature entirely of the judicial branch. The Chief Justice would name the “inspector general,” but the bill specifies that an appointment would only come after “consultation” with the leaders of the Senate and the House. Is that a form of veto power? Or would the Chief Justice be free to ignore any legislative input?
And, on the all-important question of removal of such an appointee from office, the Chief Justice could do so but would be required to give his reasons to both houses of Congress.
Is that a sign that Congress would not quite trust the Chief Justice to use that authority?
While the Grassley bill says explicitly that the new “inspector general” would have no power to “investigate or review any matter that is directly related to the merits of a decision or procedural ruling” by any federal court, the officer would have explicit authority to “conduct investigations of alleged misconduct in the Supreme Court that may require oversight or other action” by Congress or by the judiciary itself. (Similar investigative power would exist for lower courts, too.)
That investigative power is not spelled out in the bill, so it presumably would be up to the “inspector general” to define the kind of “misconduct” to be monitored. Would it only be a “high crime or misdemeanor” of the kind sufficient to justify impeachment? Would it have to be criminal behavior? If not either of those, would it be a breach of some ethical principle or norm. and, if so, defined by whom?
Policing ethics is not a process that lends itself to nice precision. What is “good” or “bad” behavior by a judge? The Constitution itself specifies that federal judges may keep their jobs “during good behavior.” But the only constitutional definition of behavior contrary to that is “high crimes and misdemeanors,” in the impeachment provision; it is not further clarified.
The Grassley proposal, perhaps, might be refined as it moved through the legislative process, so some of the risks that now may surround the “inspector general” concept might be eased or removed.
Still, one fundamental question would linger around this idea: where in the Constitution does Congress derive the power to create, within the judiciary, an independent office that has quite conspicuous power to regulate the behavior of judges, and, especially, of Supreme Court Justices? Can such a power be extrapolated from the explicit powers that Article II gives to Congress? Is it related to the funding power? Or to the power to legislate, within limits, how the courts are to function? Or does it come under that open-ended power that Congress always claims and sometimes abuses, the power of “oversight”?
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