The increasingly powerful Supreme Court has an ethics problem. The time for Congress to act is now.

Yesterday the Supreme Court began its new term, and this year's docket promises to bring to the forefront issues that will hit home for many Americans:Water quality standards.Overtime wages.Ghost gun regulations.Medicare reimbursement. Gender-affirming medical care. For some, the Supreme Court's decision will be a matter oflife or death. But repeated high-profile ethics scandalshave steadily eroded public confidence in the Court, with many Americans left to wonder whether the justices are deciding cases based on the law or their own financial and personal biases.

For an institution whose effective functioning depends on its credibility, this is a serious problem. But even with approval ratings near an all-time low, the Court has continued to expand its authority into areas historically entrusted to the branches of the federal government most accountable to the people. This seismic shift in power to nine unelected, life-tenured justices has prompted closer public scrutiny, but the Court nonetheless has remained largely unchecked by those elected to represent the people who are losing faith in our judicial system.

As the Supreme Court stakes out an ever-growing role for itself in resolving questions on divisive and politically charged issues, it has become increasingly important for Congress to bring the balance of power back to the people's representatives and ensure that the justices are held to the highest ethical standards. A binding code of conduct representsone of the many waysCongress and the Court can build a more accountable, transparent and independent judiciary, but despite the introduction of legislation in both the House and Senate to create an enforcement mechanism for a Supreme Court code of conduct, including the Supreme Court Ethics Actand the Supreme Court Ethics, Recusal and Transparency Act, no bill has passed either chamber. Congress must take action to restore the legitimacy of and public confidence in a judicial system whose decisions shape the effective functioning of our society and the lives of so many Americans.

The Supreme Court's power grab

The dramatic expansion of the Supreme Court's power did not happen overnight, but it was a notably prominent feature of the Court's last term. Among the cases effectuating this power grab was Loper Bright Enterprises v. Raimondo, an administrative law challenge that made headlineswhen in its decision the Court overturned the nearly forty-year-old Chevron doctrine. Under Chevron, courts would defer to reasonable agency interpretations if Congress had not directly addressed the question at issue. But under the new Loper Brightframework, if a statute is silent or ambiguous a court must use its own "independent judgment" to determine whether an agency acted within its authority.

This decision carries vast implications. As Justice Kagan explained,by wresting discretion from agencies the Court seized "exclusive power over every open issue" of regulatory law and effectively turned the Supreme Court "into the country's administrative czar." Now, judges considering regulations on disaster relief, food safety, transportation systems, housing assistance and more will fill in any gaps themselves, without a requirement to defer to agency experts.

Two other notable 2024 decisions also promise to augment the Court's role in reviewing agency actions. First, inCorner Post, Inc. v. Board of Governors of the Federal Reserve Systemthe Supreme Court effectively eliminated any time constraints for when someone can challenge an agency regulation. And inSEC v. Jarkesy, the Court held that when the SEC seeks civil penalties against a defendant for securities fraud, the defendant is entitled to a jury trial in federal court. So now judges and juries, rather than agency adjudicators, generally must consider SEC civil-penalty claims, and other agencies that impose civil penalties through the administrative process may facelegal challenges to their own procedures. This trio of administrative law cases sets the stage not only for virtually limitless legal challenges to agency actions under the new Loper Bright framework, but also for life-tenured judges to effectively regulate many areas Congress had entrusted to agencies. The long list of issues now decided by judges, rather than agency experts, includes everything from standards for hazardous air pollutants, to workers'rights, to federal firearmsrestrictions, to sex-based discrimination in schoolsand in healthcare.

This extraordinary shift in power from the legislative and executive branches to the courts, however, goes well beyond these decisions. InTrump v. Anderson, CREW and co-counsel represented six Republican and unaffiliated voters who, based on President Trump's actions during the January 6th insurrection,challengedTrump's eligibility to appear on Colorado's Republican presidential primary ballot under Section 3 of the 14th Amendment. After Colorado's highest court found that Trump had engaged in insurrection and held that he should be excluded from the ballot, Trump appealed to the Supreme Court. In an unsigned opinion, the justices unanimously agreed on the only holding necessary to resolve the case: a state cannot enforce Section 3 against a presidential candidate.

But the Court nonetheless fractured on which actors could enforce Section 3. Departing from the foundational principle that a court should decide only what is necessary to resolve a case, the majority preemptively foreclosed almost all avenues of enforcing Section 3 by seeminglydeclaring that only Congress may do so. The remaining justices were left to wonder why, "[i]n a case involving no federal action whatsoever," the majority decided to undertake that "complicated question." For a case of such substantial consequence because of the parties involved, the novelty of the issue presented, the alarming yet familiar underlying facts and the accelerated timeline of the primary election season, the majority's disregard for the principle of judicial restraint became even more salient.

Then, in Trump v. United Statesthe Court considered whether the former president was immune from prosecution for allegedly conspiring to overturn the November 2020 election. In a split decision, the majority of the justices granted former presidentssweeping immunityfor both core constitutional functions and vaguely defined "official acts." Under the Court's ruling, judges and juries alonedetermine whether the immunity outlined by the Supreme Court protects a former president from prosecution for actions they took while in office. But it is not clear from the majority's opinion how courts will complete this task. As Justice Jackson explained, the Court failed to provide meaningful guidanceto lower courts charged with conducting this inquiry, while nonetheless effectively "elbow[ing] out of the way both Congress and prosecutorial authorities within the Executive Branch, making itself the indispensable playerin all future attempts to hold former Presidents accountable to generally applicable criminal laws."

In each of these decisions, the justices in the majority and the justices writing separately applied the same originalist text, history and tradition framework, but nonetheless reached dramatically different outcomes. This disagreement, alone, is unremarkable. But the Court's decisions cannot be divorced from the reality in which they were issued, and the considerable expansions of judicial power in Anderson and Trump were advanced by a Chief Justice who once swore under oaththat "no one is above the law" and by associate justices who failed to recuse despite public reports of possible bias. Justice Alito participatedin both decisions even though flagsassociated with the insurrectionists and the "Stop the Steal" movement flew at his homes. And Justice Thomas, who boasts a long historyof accepting (and failing to disclose) lavish gifts from political activists, did not disqualify himself from considering these cases even though his wife supportedthe former president's efforts to overturn the 2020 election.

Neither a federal recusal statutenor the adoption of a non-binding Supreme Court Code of Conductlast fall prevented these issues from arising, nor did they ameliorate public concern that the Court's professed adherence to originalism may serve merely as a means for the justices' preferred ends. As neither Justice Alito nor Justice Thomas recused from these cases, and as Justice Alito unceremoniously blamed his wifefor his ethical failures, seven out of ten Americans reported that they believed Supreme Court justices are more likely than not to make decisions based on their own ideologies.

This is a startling statistic for an institution founded on public faith, and is especially troubling as the Court faces an upcoming docket rife with politically charged issues. The Court's need to proactively prevent and address ethical transgressions, and Congress's need to legislate a binding solution, has become even more critical as the Court carves out an expanded role for itself in resolving questions that deeply affect the same people who are losing confidencein the legitimacy of the Court as an institution.

How Congress can reclaim power and reform the Court

Congress already started this work by enacting the bipartisan Courthouse Ethics and Transparency Act. This Act, which requires the publicationof judicial financial reports and imposes stricter disclosure requirements for stock trading, has increased judicial branch transparency and is an important assertion of Congress's oversight authority.

But progress on other court reform has stalled. Members of Congress have introduced myriad other proposals to bring accountability to the Court, including bills to extend to the judiciary legislation that has long applied to the legislative or executive branches, such as basic workplace protectionsfor judicial employees and the establishment of an Inspector General. Other bills seek to expandthe circumstances for recusal, require justices to publicly explaintheir reasoning if they refuse to disqualify themselves from a case, prohibitjudges from accepting certain gifts, create a process for Congress to expediteits responses to Supreme Court decisions, banindividual stock ownership by the justices and impose broadlysupportedterm limits.

Another significant focus of introduced legislation has been to ensure that the Supreme Court abides by a code of ethics. The Court's new Code of Conductuses only aspirational language, providing that a justice "should not" accept gifts or allow financial relationships or interests to influence the justice's conduct. And the Code lacks any enforcement mechanism. Congress should pass legislationto address these shortcomings, but even if Congress does not, the Supreme Court can create do so on its own, such as by establishing a panel of retired lower federal court judgesto assist the justices in complying with federal law and the Code of Conduct.

With trust in the judicial branch hovering near all-time lows, it is critical to implement these safeguards and to strengthen and codify the norms that previously governed Court decorum. To restore public confidence in our judiciary, all members of Congress and the Court must share the goal of building a Court that both is, and appears to be, impartial, especially as the Court has increasingly shifted power to the judiciary. Public trust has never been more essential, and with several politically volatile, high-profile cases on the horizon, the time to act is now.

Photo of Capitol by Tim Brown via a Creative Commons License.

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