If the Supreme Court does not take such action, he cautioned, Congress has “the power under the Constitution” to prescribe ethical standards of conduct for the court.
The statement is part of written testimony Luttig – a former judge on the US 4th Circuit Court of Appeals – has submitted to the Senate Judiciary Committee holding hearings Tuesday and follows weeks of ethical controversies involving the Supreme Court. Luttig’s public admonition is especially notable because of his conservative credentials and his longstanding, close ties with the Supreme Court.
In 1991, Luttig was part of the team that prepared Justice Clarence Thomas for his controversial Senate confirmation hearings. Before that, he clerked for then-Chief Justice Warren Burger, as well as for former Supreme Court Justice Antonin Scalia when he sat on the US Court of Appeals for the DC Circuit. Luttig additionally was known as one of the top “feeder judges” on the court of appeals, sending 45 of his 47 clerks to clerk for justices on the Supreme Court.
The Senate Judiciary Committee is also receiving written testimony from Harvard professor and Supreme Court litigator Lawrence Tribe, a legal luminary on the left. Together, the letters present viewpoints from the legal left and right that Congress does have the power to enact Supreme Court ethics reform.
They add to the cacophony of voices from across the legal profession that are speaking out in response to what is seen as a growing legitimacy crisis at the Supreme Court. Thus far, Republican lawmakers are mostly opposed to stepping in.
Considered a conservative legal heavyweight, Luttig’s willingness to weigh in is notable. He previously made headlines for his testimony to the House select committee that investigated January 6, 2021, where he stated that former President Donald Trump had tried to overturn the election and that “Trump and his allies and supporters are a clear and present danger to American Democracy.”
Luttig writes in the new letter to the Senate that binding a code of conduct for the justices “ought not be thought of as anything more – and certainly nothing less – than the housekeeping that is necessary to maintain a Republic.”
Tribe also writes that Congress had the power to enact ethics rules for the court that would address the justices’ non-judicial conduct. Both legal experts, however, take the view that while Congress can impose a code of conduct on the justices, it cannot command the Supreme Court to write one for itself.
“I am not insensitive to the delicacy of the political choices Congress would be required to make in order to decide what limits to impose on how the Justices conduct themselves with respect to accepting favors from individuals and groups with business before the Court or with interests in the outcome of that business and on how transparent Justices must be in the way they lead their lives outside the Supreme Court itself and outside the performance of its judicial tasks,” Tribe writes.
But, he says, given the mandates of the Constitution, such policy choices are “one buck Congress cannot pass.”