Justice Kavanaugh Can’t Be Above Ethics Rules, Can He?

(Bloomberg Opinion) -- A federal appeals court has dismissed all complaints brought against Justice Brett Kavanaugh as a result of his confirmation hearings — because he’s now on the U.S. Supreme Court. Legally, the decision is probably correct. The federal Judicial Conduct Act, passed by Congress, doesn’t apply to the Supreme Court justices. And the Code of Conduct for U.S. Judges, adopted by the federal courts’ policy-making body, doesn’t apply to the justices either.

Ethically, however, the situation is more than a little bit outrageous: Are Supreme Court justices, of all people, really above the law?

There’s an orthodox constitutional law answer to this question: Roughly speaking, it’s yes, they are. But I’m not sure the orthodox answer is entirely correct. It would certainly be worth Congress’s holding hearings to figure out whether it has the power to pass a code of judicial conduct that applies to the justices.

Before delving into the constitutional meat of the matter, let’s pause to note that there was a vaguely possible argument available to the U.S. Court of Appeals for the 10th Circuit that would have allowed it to consider the complaints brought against Kavanaugh.

The Judicial Conduct and Disability Act of 1980 does indeed say that “the term ‘judge’ means a circuit judge, district judge, bankruptcy judge, or magistrate judge.” And the complaints against Kavanaugh date to a time when he was in fact a circuit judge.

The law says that “any person alleging that a judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts” can file a complaint. That could have been construed to include Kavanaugh.

Most lawyers, however, would agree that the law shouldn’t be applied to Kavanaugh because there would be no way to sanction him under the law now that he is no longer a judge by its definition. It’s logical to interpret the statute as not applying at all once the subject of the complaint is no longer a judge.

That’s probably right; nevertheless, the possibility of a symbolic inquiry, even without sanctions, should linger in your mind while we address the main issue: whether Congress could amend the law to cover the justices.

Unsurprisingly, at least some justices think not. The basic idea is that the Supreme Court was created by the Constitution. That is supposed to make it a coordinate branch of government that does not fall within the reach of Congress’s ability to impose conditions on the justices’ conduct.

In contrast, the Constitution says that Congress may create the lower federal courts if it chooses to do so. Judges on those courts come under Article III of the Constitution and get life tenure during good behavior, like the Supreme Court justices, but Congress may mandate standards for their conduct because it created their offices.

Chief Justice John Roberts hinted at this view in 2011, testifying before Congress. Speaking of the code of judicial conduct, he said there was “a fundamental difference between the Supreme Court and the other federal courts” and that Congress only created the Judicial Conference (which writes and administers the code) “for the benefit of the courts it had created.”

On closer examination though, this constitutional argument isn’t unassailable. For one thing, the Constitution doesn’t say how many justices there must be on the Supreme Court. So when Congress specifies the creation of the office of each justice, it’s acting within its discretion — the same way it is when it creates lower federal courts and the judgeships to go with them. Maybe the chief justice, whose job has to exist under the Constitution, is outside Congress’s reach. But there’s an argument for subjecting the other justices to the same conduct requirements as other federal judges.

Taken from the other side, all Article III federal judges, regardless of court, are entitled to independence from Congress in the form of life tenure. If it’s true that being subject to a code of judicial conduct doesn’t compromise the independence of lower court federal judges, why would it compromise the independence of the Supreme Court justices to be subject to the same code?

Perhaps most powerfully, there seems to be no question that Supreme Court justices are subject to other laws passed by Congress, like the laws against bribery or obstruction of justice. A ban on bribery is effectively a restriction on how judges do their jobs. If Congress can pass that, why can’t Congress impose other legal restrictions on conduct that would potentially pervert the course of justice?

Admittedly, if Congress passed a law subjecting the justices to ethics standards, the final arbiter of whether the law would be constitutional would be the justices. But that’s not a bad thing. It would in fact be tricky for the justices to hold that they are outside the reach of Congress.

I’m all for judicial independence, especially now, when the U.S. president is interested in compromising it. But making the Supreme Court justices answer to the same codes of judicial conduct that govern other federal judges won’t meaningfully compromise their independence.

And it would send a message that is crucial in this historical moment: No branch of government, whether the judiciary or the executive, is above the law.

To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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