Can Congress regulate ethics of United States Supreme Court? | Civics Project
Q. Can Congress regulate the Supreme Court?
A. Recent investigations of the gifts and money spent on Justices of the Supreme Court has raised issues about what can be done to institute a stronger ethics policy to avoid impropriety and influence-peddling. Historically, the Supreme Court has largely been allowed to police itself and has resisted outside scrutiny. In a recent interview with the Wall Street Journal, Justice Samuel Alito asserted that, “Congress did not create the Supreme Court. I know this is a controversial view, but I'm willing to say it: No provision in the Constitution gives them the authority to regulate the Supreme Court. Period.”
However, other legal scholars have suggested that the question of regulation may be a bit more complicated. All three branches of the United States’ government were defined in scope and authority by the Constitution. Article I is about Congress. Article II concerns the executive branch, and Article III concerns the judiciary. Our Constitution is a short document, especially when compared to other national constitutions. The U.S. Constitution is 4,543 words (before the amendments). By contrast, India’s is over 146,000 words. Our constitutional provisions often lack the specificity of some of the more detailed documents.
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When it comes to the courts, the drafters left a great deal unsaid. The Constitution establishes that there will be a Supreme Court, and it sets some of its jurisdiction. Much of the rest is left to be determined by Congress. Article III reads in part, “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” The Constitution gives federal courts jurisdiction over certain types of cases, such as suits between citizens of different states. But, it’s a fairly short list.
The Supreme Court is assigned original jurisdiction over cases affecting ambassadors, other public ministers, and those in which a state is a party. The remainder is pretty much given to Congress to decide. Article III section 2, clause 2 reads, “In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make (emphasis added).”
One of the early acts of the new Congress under President George Washington was to exercise its authority and establish and define the federal courts. The Judiciary Act of 1789 set up the federal court system, established the number of Supreme Court justices at six, defined appellate jurisdiction, and created the position of attorney general. There was a fair amount of debate about how it should be structured, with James Madison complaining in a letter to Edward Pendleton that some of the provisions should be corrected so as not to be, “offensive violations of Southern jurisprudence.”
The Supreme Court represents a branch of government, and for separation of powers to work, it must have some independence. However, Congress is given a great deal of authority over the structure and procedures of the U.S. Supreme Court, should it choose to use it. Some reforms, such as changing the size of the Court, or its jurisdiction under the law, are clearly permissible. Some reforms such as term limits would probably require a Constitutional change.The harder determination is more complex reforms, such as rotating judges through different courts, requiring them to hear lower court cases, imposing an ethics code, or other substantive changes to procedure. They may well be permissible based on the words of the Constitution but if the Supreme Court finds those reforms unconstitutional, there is no other place to appeal.
Kevin Wagner is a noted constitutional scholar and political science professor at Florida Atlantic University. The answers provided do not necessarily represent the views of the university. If you have a question about how American government and politics work, email him at kwagne15@fau.edu or reach him on Twitter @kevinwagnerphd
This article originally appeared on Palm Beach Post: Can Congress regulate influence peddling in U.S. Supreme Court
