Ashley Reid is a 2L at American University Washington College of Law. She is a U.S. Navy veteran with legal interest in national security, data privacy, and cybersecurity.
Most, if not all, Americans and individuals with significant U.S. ties know and acknowledge the Judicial Branch as the branch that checks and balances the Executive and Legislative Branches. The concept of judicial review is not foreign to anyone who has gone to court for civil matters or constitutional controversies. Once a matter has been decided in a court of law, a party may appeal to the next court of authority, the high court. If a party feels the decision was made in error in the high court, they can submit certiorari to the Supreme Court. The Supreme Court of the United States (“SCOTUS”) reviews approximately 1% of petitions it receives. The Supreme Court Justices then set the petition’s hearing dates so appellate attorneys may argue their position. Once SCOTUS publishes its decision, it is binding to the Legislative, Executive, and lower courts, unable to be rechallenged.
In light of recent events, one cannot help but think the Judicial Branch goes unchecked but does all the checking. One can only wonder who checks the SCOTUS to ensure the rules of ethics accompany its judicial review.
The Administrative Office of the U.S. Courts— Federal Judiciary published its Code of Conduct for federal and state judges. The Code of Conduct sets guidelines for federal judges and their conduct for official duties. The document was last revised in March of 2019, prior to the January 6th insurrection and the Dobbs overturn of Roe v. Wade. The chapter consists of an Introduction, 5 Canon Laws, Compliance with the Code of Conduct— the Code’s exception, and ends with the Applicable Date of Compliance. Canon Laws require federal judges to act with integrity and independence, avoid impropriety and any appearance of impropriety, and act with fairness, impartiality, and diligence. It also provides guidelines for judges’ off-duty conduct.
Before the end of his presidency, Donald Trump nominated Justice Neil Gorsuch, Justice Brett Kavanaugh, and Justice Amy Coney Barrett. Justices Barrett and Kavanaugh are Catholic, while Justice Gorsuch is of Protestant faith. The religious makeup of these Supreme Court Justices, in addition to the justices already on the bench, tends to result in decisions leaning in favor of conservative ideologies. In recent times, these ideologies risk setting the country back to an era where civil rights and liberties were daydreams. SCOTUS’ decision to repeal Roe v. Wade captured society’s attention, causing individuals to lose confidence and trust in America’s highest court. The Supreme Court evaluates and determines the constitutionality of legislative acts and policies. Succumbing to the judicial authority of the Supreme Court, Americans realize judicial judgments are subjective to whoever is sitting on the bench. It is time Americans understand the connection between judicial review and judges’ beliefs.
Although the Constitution grants federal courts the authority to review their judgment and vacate the decision once the matter is presented, we are in dire times when decisions that created protections around individual choices are rechallenged in front of biased unbending judges. The decisions made by these [inflexible] judges have a substantial impact on individuals’ lives for years before another legal matter that meets the justiciability requirements is heard and re-evaluated. To protect the separation of powers, the Supreme Court held that Congress could not enact legislation that directs courts to revisit a final decision, as held by Plaut v. Spendthrift Farm, Inc. As a result, Congress cannot command the Supreme Court to re-open and reassess its decision merely because they disagree with the final judgment.
Contextually, the Constitution recognizes that judges are not infallible. Thus, Congress does possess constitutional powers— albeit limited and unexplored— to regulate the judiciary. Article III Section 1 states that judges at any level of the federal judiciary can hold their seat on the bench while exhibiting “good behavior.” Although the “good behavior” standard is debatable, it should be time for Congress to define those standards. Federal judges, especially Supreme Court Justices, should not feel at ease when deciding the fate of American society and be free from penalty if their decisions violate the Judicial Code of Conduct. Article III Section 2 of The Constitution asserts that even though the Supreme Court has original jurisdiction over matters concerning public officials and those to which a state is a party, Congress may subject the Supreme Court to the “Exceptions Clause,” limiting which cases it may hear on appeal by limiting federal court jurisdiction over certain matters.
The Exception Clause is an important tool given to Congress to limit the proscribed conduct of Supreme Court Justices. If Congress were to utilize the Exceptions Clause to constrain a seditious Supreme Court, SCOTUS jurisdiction could be limited in appellate cases it reviews. Congress cannot limit matters within the Supreme Court’s original jurisdiction. Congress exercised this authoritative authority in Ex parte McCardle case. In this case, the petitioner wanted to challenge the constitutionality of his arrest by the military for publishing editorials criticizing the Reconstruction. After being denied an appeal, the petitioner submitted a writ of habeas corpus to the Supreme Court under the 1867 congressional statute that conferred jurisdiction on appeal. Congress repealed its statute conferring jurisdiction prior to the Court rendering its decision in the case, revoking the Court from being able to hear such cases from that moment forward. The Court validated Congress’s power to limit its jurisdiction so long as it does not affect its original jurisdiction in accordance with Article III, Section 2 of The Constitution.
Congress should be flexible enough to limit the Supreme Court’s appellate jurisdiction if the Court uses its authority to reverse and nullify rights and freedoms Americans have long fought to receive.
 See generally U.S. Const. art. I, II, III.
 Court Role and Structure, United States Courts, https://www.uscourts.gov/about-federal-courts/court-role-and-structure
 About the Supreme Court, United States Court, https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about
 The Supreme Court at Work: Jurisdiction, Supreme Court of the United States, https://www.supremecourt.gov/about/courtatwork.aspx
 Ethics Policies, U.S. Courts, https://www.uscourts.gov/rules-policies/judiciary-policies/ethics-policies.
 Code of Conduct for United States Judges, U.S. Courts, https://www.uscourts.gov/sites/default/files/code_of_conduct_for_united_states_judges_effective_march_12_2019.pdf.
 Id. (Document is dated March 2019)
 Supra Note 6***
 Supra Note 6***
 Supreme Court Nominations, U.S. Senate, https://www.senate.gov/legislative/nominations/SupremeCourtNominations1789present.htm.
 Frank Newport, The Religion of the Supreme Court Justices, Gallup (Apr. 8, 2022), https://news.gallup.com/opinion/polling-matters/391649/religion-supreme-court-justices.aspx.
 Jeffrey Jones, Confidence in U.S. Supreme Court Sinks to Historic Low, Gallup (June 23, 2022), https://news.gallup.com/poll/394103/confidence-supreme-court-sinks-historic-low.aspx.
 The Court and Constitutional Interpretation, Sup. Ct. United States, https://www.supremecourt.gov/about/constitutional.aspx.
 Appellate Courts and Cases, U.S. Cts., https://www.uscourts.gov/statistics-reports/appellate-courts-and-cases-journalists-guide#process.
 See generally Rebecca Brown, et al., Global Impact of Dobbs v. Jackson Women’s Health Organization, 31(1) Sexual & Reprod. Health Matters (2022).
 Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995)
 US Const. art. III, § 2, cl. 2.
 Id. at art. III, § 1.
 Id. at art. III, § 2, cl. 2.
 Exceptions Clause (Legal Definition and Why It’s Important), Inc. Zone (Feb. 19, 2021), https://incorporated.zone/exceptions-clause/.
 Ex parte McCardle, 74 U.S. 506 (1869).