Posted September 2024
Congress has a long history of conducting oversight over a range of judicial branch activities. In 1789, the very first United States Congress enacted legislation creating the federal district courts, establishing the jurisdiction and size of the Supreme Court, and setting forth the oath of office for all members of the federal judiciary. Congress subsequently established the intermediate courts of appeal, enacted ethics laws imposing recusal and financial disclosure requirements and limits on outside income and gifts for members of the judiciary, and investigated federal judges, including Supreme Court justices, for possible impeachment. Sitting Supreme Court justices have appeared at least 175 times before congressional committees to provide testimony.
Despite this history, two Supreme Court Justices have suggested that the Court is not subject to congressional oversight. In a 2023 interview with the Wall Street Journal, Justice Samuel Alito asserted that “[n]o provision in the Constitution gives them the authority to regulate the Supreme Court – period.” In 2011, in the annual report on the federal judiciary, Chief Justice John Roberts stated that the Court has “never addressed” whether Congress has authority to establish financial disclosure and gift limitations on the Supreme Court and “the limits of Congress’s power to require recusal have never been tested.” In 2023, the Chief Justice refused the invitation of Senate Judiciary Committee Chair Richard Durbin to testify at a hearing on Supreme Court ethics.
This summary discusses precedents regarding congressional oversight of the judiciary through ethics statutes, impeachment proceedings, calls for recusal, and appropriations measures.
Congressional regulation of judicial branch ethics began in the first Congress of the United States and includes enactment of several major ethics laws within the last century. In 1789, Congress codified the general boundaries on judicial conduct with the terms of the judicial oath. Under this law, members of the federal judiciary including Supreme Court Justices must pledge to “administer justice without respect to persons, and do equal right to the poor and to the rich,” and “faithfully and impartially discharge and perform” their duties according to the best of their abilities, consistent with the Constitution and laws of the United States. Since then, Congress has enacted a range of laws defining specific requirements for conduct by members of the judiciary. These include:
Congress historically has reviewed the efficacy of ethics requirements governing judicial conduct in oversight hearings in both the House and Senate. According to the Congressional Research Service, hundreds of judges have provided voluntary testimony to Congress in oversight hearings, including at least 175 appearances by Supreme Court justices. While a substantial focus of this oversight concerns appropriations, members of the judiciary have addressed questions on ethics from members of Congress at oversight hearings on numerous occasions. For example:
In cases of egregious ethics violations or other misconduct by members of the judiciary, Congress has exercised its constitutional authority to conduct impeachment proceedings to evaluate whether the conduct merits removal from office. In total, the House of Representatives has impeached 15 federal judges, 8 of which resulted in conviction by the Senate. The most recent judicial impeachment proceeding occurred in 2010, which resulted in the conviction and removal from office of federal district court judge G. Thomas Porteous, Jr.
A Supreme Court Justice, Samuel Chase, was impeached in 1804. In approving the articles of impeachment, the House of Representatives stated that Justice Chase had conducted a trial of an individual accused of treason in an unfair and arbitrary manner that prejudiced the jury against the defendant. Following a Senate trial, the Senate acquitted Chase in 1805.
More recently, impeachment was threatened but not carried out against Supreme Court Justices Abe Fortas and William O. Douglas. When President Lyndon Johnson nominated Fortas to succeed Earl Warren as Chief Justice in 1968, reports emerged that Fortas had received a legal retainer from the family foundation of someone under investigation by the Securities and Exchange Commission. As pressure built for the House to pursue impeachment, with several House members preparing impeachment resolutions, Fortas withdrew himself from consideration and, several months later, resigned from the Supreme Court.
In the case of Douglas, the House Judiciary Committee created a special subcommittee to carry out an impeachment investigation following floor remarks by then-House minority leader Gerald Ford accusing Douglas of improprieties including publishing materials that encourage rebellion, failing to recuse from a case in which he had a conflict of interest, and receiving payments from a foundation with ties to alleged criminals. Five months later, in September 1970, the Special Subcommittee’s final report did not recommend bringing impeachment charges against Justice Douglas.
With respect to the 14 impeachments of lower court judges, several involved allegations of perjury or false statements or abuse of power, including two allegations of abuse of the contempt power. Other charges that the House has included in articles of impeachment of federal judges include improper acceptance of gifts including cash payments and trips, intoxication on the bench, tax evasion, favoritism in the appointment of bankruptcy receivers, and failure to recuse. Based on research cited in Deschler’s precedents and review by Co-Equal, all of the charges at issue in the impeachments of members of the judiciary related to either the use of judicial power or non-judicial conduct involving allegedly criminal activity.
An additional means through which Congress exercises oversight authority over the judiciary is through funding to support judicial branch operations. As part of this process, the Supreme Court, like other federal departments and agencies, annually submits its budget request to the House and Senate’s Appropriations Committees for the upcoming year. The budget request for the rest of the judiciary is submitted by the Judicial Conference of the United States and the Administrative Office of the U.S. Courts.
Following submission of their budget requests, representatives from the Supreme Court, Judicial Conference, and Administrative Office typically testify before the subcommittees of the House Appropriations Committee with jurisdiction over the judicial branch’s funding. Before 2012, it was customary for two Supreme Court Justices to explain the Court’s funding requests and answer members’ questions. In 2008, Justice Anthony Kennedy noted the importance of Justices appearing before the appropriations subcommittees:
“The fact that we do come before you is really important for us because it gives us a discipline, structure, a rule. We know that we must justify our budget, and that makes us as an institution careful about adopting a new program, careful about the expenditures of public funds. And so this [process] serves that very important purpose.”
In recent years, however, Justices have appeared less frequently, with their last appearance before an appropriations subcommittee occurring in 2019.
After receiving testimony from the Justices and representatives from the Judicial Conference and Administrative Office, the House and Senate Appropriations Committees negotiate and finalize the Court and judicial branch’s funding, which is provided in the regular annual appropriations acts. The annual measures generally contain similar language from year to year. For example, the FY2024 and FY2023 appropriations to the Court and judicial branch illustrate how Congress has typically appropriated funding.
These measures also include legislative provisions related to the judicial branch and Supreme Court (commonly referred to as “riders”). For example, the final FY2001 and FY2023 appropriations acts included legislative riders related to the Supreme Court, including the Court’s police force and the Justices’ salaries.
In FY2000, the Senate Appropriations Committee’s appropriation to the Court included a legislative provision, which Chief Justice William Rehnquist requested, that would have allowed federal judges to accept honoraria payments. This provision, however, was not enacted into law. During the same appropriations process, a member of the House Appropriations Committee asked the Supreme Court in writing if it would be bound by a legislative mandate to diversify its hiring of law clerks should such a mandate be included in the Court’s appropriation. In response, a representative from the Court highlighted the constitutional implications of the question, stating: “This question raises serious constitutional issues, and the Court is forbidden by the Constitution to give advisory opinions.”
In addition to the appropriations acts, the appropriations process provides members of Congress with additional oversight tools. The two primary methods of oversight include questioning Justices and other representatives of the judiciary during their testimony before appropriations subcommittees and issuing specific directives in committee reports to address concerns about judicial conduct.
For example, in 2001, members of the House’s Commerce, Justice, State, and Judiciary Appropriations Subcommittee raised concerns about the lack of representation of women and racial and ethnic minorities among the Justices’ law clerks, when Justice Souter and Justice Thomas appeared before the committee. Following the hearing, the Appropriations Committee report accompanying the Court’s appropriation noted that the Committee was “looking forward to continuing progress in this matter.” The following year, a member of the same appropriations subcommittee asked Justices Anthony Kennedy and Clarence Thomas for a progress report on the issue, and Justice Kennedy responded:
“The hearings last year…did cause the Court to take a second look at this. We are renewing our effort…. I think it having been raised in the committee has been very helpful. We have again a renewed and conscious awareness to do better.”
The conference committee reports and an explanatory statement accompanying the Court’s appropriations in 2002, 2003, and 2004 included directives related to the hiring of law clerks. Members have continued to raise the issue in hearings with Justices throughout the 2000s, including their most recent appearance in 2019.
In addition, members of the House’s Financial Services and General Government Appropriations Subcommittee have raised the issue of the Supreme Court adopting a code of conduct when the Justices appeared to testify in 2011, 2013, 2015, and 2019. The House Appropriations Committee reports for the Court’s FY2021, FY2022, and FY2023 appropriations bills included directives urging the Supreme Court to adopt a code of conduct.
The most recent example of a report directive addressing other conduct concerns is the House Appropriations Committee report for the FY2025 appropriations bill for the judiciary. It includes a directive to the Administrative Office’s Office of Judicial Integrity to continue to inform Congress “on the challenges remaining to provide an exemplary workplace for every judge and every court employee.” Additionally, it urges the Judiciary and Federal Judicial Center to provide “regular and appropriate access” to the information requested by the Government Accountability Office and National Academy of Public Administration to complete their review of workplace misconduct in the federal judiciary.
