Originalist Perspectives on Ethics and the Supreme Court

Article III of the Constitution vests the “judicial Power” in “one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Our founding document recognizes that the Supreme Court stands apart from the rest of the federal judiciary. Yet, Congress has long regulated several aspects of the high court, including its appellate jurisdiction, rules for establishing a quorum, and standards for recusal. Some critics argue that Congress should go further to regulate ethics on the Supreme Court. Some proposals would require the Justices to adopt an ethics code. Other proposals would impose one on the Justices. This panel will explore originalist perspectives on ethics and the Supreme Court, in particular considering these questions: When it comes to establishing or even enforcing ethical standards for Supreme Court justices, is there a role under the Constitution for Congress? Is it true that Congress has the power (or even without that explicit power) regulate the high court's quorum and recusal standards? And, as a matter of prudence, should Congress take these steps? In Federalist No. 78, Hamilton described the judiciary as the “least dangerous branch.” While the Executive holds the sword” and the Legislature “commands the purse,” the courts have “merely judgment.” But can the courts faithfully exercise that judgment when threatened by the sword and pinched by the purse? Featuring: Mr. David Lat, Founder, Original Jurisdiction Hon. Jay Mitchell, Associate Justice, Alabama Supreme Court Mrs. Carrie C. Severino, President, Judicial Crisis Network Moderator: Hon. David R. Stras, United States Court of Appeals. Eighth Circuit