Nikolai Morse '24
Editor-in-Chief
On Thursday, September 7, 2023, the Federalist Society at UVA Law hosted a discussion titled “Perspectives on Judicial Ethics.” The discussion featured Professor Josh Blackman and UVA Law’s own Professor Amanda Frost.
Professor Blackman is the Centennial Chair of Constitutional Law at the South Texas College of Law Houston. He is also an adjunct scholar at the Cato Institute and a Nonresident Scholar at the Georgetown Center for the Constitution. He has authored three books, five dozen law review articles, and countless blog posts.
Professor Amanda Frost is the John A. Ewald Jr. Research Professor of Law at the University of Virginia School of Law. She focuses her scholarship on the fields of immigration and citizenship law, federal courts and jurisdiction, and judicial ethics. She has been cited by over a dozen federal and state courts, and she has been invited to testify on the topics of her articles before both the House and Senate Judiciary Committees. Before joining UVA, Professor Frost was at the American University Washington College of Law.
The professors discussed various topics, including whether Congress has the power to effectively regulate the Supreme Court, the merits of current legislative proposals, and the efficacy of the Supreme Court’s self-governance thus far. Given the past year’s focus on potential ethics violations by members of the Supreme Court (most notably Justice Clarence Thomas’ acceptance of private travel and other forms of hospitality), the event was timely and, understandably, well-attended.
The event’s moderator, Connor Fitzpatrick ’25, opened the discussion by prompting the professors for their views on whether Congress has the ability to impose a code of conduct on the Supreme Court.
Professor Blackman began by posing a thought experiment. He asked to imagine you were James Madison, tasked with drafting the Constitution. Would you design the courts the way they had? Would you give them life tenure, knowing people could work past 90? Would you give the Supreme Court power to effectively reshape policy, so long as five lawyers agree? Professor Blackman concluded, “probably not.” Professor Blackman also concluded, however, that although we might design the system differently knowing what we now do, any discussion of ethics reform must account for the relevant history.
Turning to the issue of Congress’ authority, Professor Blackman noted that there were two options before Congress. One option would be for Congress to write a set of rules and order the Supreme Court to abide by them. The other option would be for Congress to order the Court to adopt a more robust code of ethics. According to Professor Blackman, there is little precedent to support Congress taking the first path. Professor Blackman noted that the second option was the type of bill that had been floated by sponsors such as Senator Sheldon Whitehouse (D-RI), and was mirrored by the Supreme Court releasing its statement on ethics and principles a few months ago. In order to avoid both partisan dynamics and separation of powers concerns, Professor Blackman expressed a hope that the Court would release a code of ethics of its own volition, soon.
Professor Frost, in contrast, noted that she thought the text and history of the Constitution suggested that “Congress has a great deal of authority over the Supreme Court.” Professor Frost distinguished between Congress’ authority to oversee and regulate the court and its ability to influence the substance of the Supreme Court’s decisions, which the Constitution’s text and structure are designed to prohibit. Professor Frost noted that the Constitution only provides for a Supreme Court, leaving out lower courts entirely. This, Professor Frost explained, was a power given to Congress as part of a compromise crafted by James Madison. Questions such as how many Justices sit on the court, the requisite quorum to issue a decision, the budget of the court, and various other details were left to Congress. Pushing back on Professor Blackman’s statement that Congress cannot impose anything on the courts, Professor Frost pointed out that Congress has required every Justice to take an oath of office. Finally, Professor Frost agreed that she would far prefer to see the Supreme Court promulgate its own code of ethics, than for Congress to impose one.
The panelists discussed various other topics, including the efficacy of the current regulation of lower federal courts, the role of public perceptions of legitimacy in the proper functioning of the judicial system, the proposed independent Congressional commission to govern the judicial ethics rulemaking process, and whether a middle ground might be amending the existing disclosure acts.
After a lengthy and interesting question and answer session, each professor offered their closing thoughts in response to a question which asked them to assess the extent to which public perceptions of legitimacy were shaped by courts taking positions which were at odds with popular policy, regardless of the legal merits.
Professor Blackman agreed that for the public at large, these issues were personal and, similarly, that the public took reports like those from ProPublica seriously. However, Professor Blackman suggested that this was the very purpose of life tenure: to insulate judges from these external pressures. Professor Frost framed these issues within the broader context of legitimacy. However, she said that the Court at times committed what she views as self-inflicted injuries, which opens the Justices up to criticisms that they lack the legitimacy to decide very difficult, sensitive issues, when they themselves are not living to the highest ethical standards.
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