William & Mary Bill of Rights Journal
Abstract
It is hardly necessary to recite the recent ethics controversies that have embroiled the Supreme Court. In the last several years, several revelations have rocked the Supreme Court and led members of Congress, President Joe Biden, and the public to question the Court’s ethical standards and impartiality. Whether the Court’s partiality and imprudence are real or perceived, recent developments like these have spurred calls for a binding code of ethics to be either adopted voluntarily by the Court or imposed involuntarily by congressional action. Given the fierce debate over ethics regulation of the U.S. Supreme Court, it is noteworthy that state supreme courts have been bound by ethics codes and judicial conduct commissions for decades. Every state and Washington D.C. has a judicial conduct commission (JCC) that is empowered to take disciplinary action against judges and high court justices at the state level.
If JCCs have successfully regulated state supreme court justices and the judges on the lower courts of the state judiciary, one wonders why a similar model could not be established for the U.S. Supreme Court. There are, however, pressing constitutional questions concerning the power of Congress to regulate the Court. Does Congress have the power to impose a binding code of ethics on the Supreme Court or create a judicial conduct commission with jurisdiction over it? Looking to the state commissions and the means of their adoption may provide an answer.
This Note will examine how states and their JCCs have answered those constitutional questions. Part I will recount recent proposals for Supreme Court ethics reform and the reactions of some of the Justices, which are indicative of the constitutional challenges the ethics proposals could attract. Part II will briefly describe how JCCs work in general and the history of their adoption. Part III will analyze the approaches to judicial regulation taken by Tennessee, Rhode Island, and North Carolina. These states have been chosen for two reasons. First, all three of them created JCCs either wholly or partly by statute (North Carolina adopted its JCC through a combination of authorizing constitutional amendment and statute). Second, all three of these states have had to reason through the constitutional issues, such as separation of powers, that are implicated by creating a JCC through legislation rather than by constitutional amendment or state supreme court rule. Accordingly, Part IV will examine the constitutional issues each state’s commission has faced. Finally, Part V will provide evidence that modeling a federal judicial ethics remedy after state approaches makes sense and provide suggestions for drafting a federal statute that would not run afoul of the various constitutional arguments that have been made against state statutes that created JCCs.
This abstract has been taken from the author's introduction.