Supreme Court; among other things, he commented that the working life of the Court is a “little different” from that of the rest of the federal judiciary.[130]
An advantage of creating a new code drafted by the Justices is that the language of the code could be geared to the unique institutional setting of the Court. For example, the considerations involved in the recusal context might be different for the Justices, even though the statutory standards are the same as for other judges.[131] This is because a Justice, unlike a lower court judge, cannot simply be replaced by another judge. As another example, a new code for the Justices might also provide guidance on public and private appearances, as the considerations could be different for a Justice than for other judges who are not the object of so much public attention. The Justices themselves might be well positioned to consider the tensions and issues that can arise from their public and private activities, and to set standards for themselves. While the Justices’ participation in a broad range of educational and professional activities undoubtedly benefits the profession and the country, the Justices must be mindful of appearances if they choose to attend meetings of organizations that have a political or other valence that could cause the Justices’ attendance to become controversial or cast doubt on their neutrality.[132] A code drafted by the Justices, amplified over time through its application, might help the Justices navigate these waters.
In either case, the Supreme Court clearly has sufficient authority to adopt a code—doing so raises no constitutional problems. The Court has the power to affect its own internal governance, so long as it continues to meet its constitutional responsibilities.
2. External Imposition of a Code
In the absence of Court action, Congress could enact a code for the Supreme Court. Several bills have been proposed to this effect, although none has been enacted.[133] Typically, the proposed bills direct the Judicial Conference to craft a code for the Court (or simply make the existing Code applicable to the Justices). In his 2011 year-end report, Chief Justice Roberts pointed out that the Judicial Conference currently lacks the statutory authority to do so. The Chief Justice put it bluntly: “Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body.”[134] The proposed bills would address this precise issue of Judicial Conference authority.
Alternatively, Congress could write a code itself. One observer points out that Congress already imposes requirements on the Court that are analogous to a code of conduct.[135] For example, Congress requires that Justices take an oath of office, requiring them to swear to
