Bonus 49: An Article III Inspector General

A modest proposal for how Congress could kill lots of birds with one stone—and create at least a modicum of enforcement pressure for whatever ethics rules the justices ultimately adopt

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, much of Thursday’s content is behind a paywall to help incentivize those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and hope that those of you who aren’t will consider a paid subscription if your circumstances permit:

One of the central distinctions between the substance of Monday’s free issues and that of Thursday’s bonus content is the personalization of the latter. This week, my prompt was remarks Justice Barrett made at the University of Minnesota on Monday, in which she suggested it would be a “good idea” for the justices to adopt a formal set of ethics rules by which they will be bound. For all of the public debate about the justices and ethics rules, the real issue, in my view, has never been what the rules are, but rather how (and by whom) they are to be enforced. And that got me thinking back to a proposal a version of which used to be introduced in every Congress by Senator Chuck Grassley and Congressman Jim Sensenbrenner (yes, Republicans!)—the creation of an Article III Inspector General, or A3IG for short. The Grassley/Sensenbrenner bill was principally directed at the lower federal courts (which, even before recent scandals about sexual harassment and other hostile work environments, were sorely in need of more oversight). But as I explain below the fold, it could easily be adapted to also provide the closest thing to an enforcement mechanism for misbehavior by the justices that Congress, in my view, has the constitutional power to create.

The atrium of the Thurgood Marshall Federal Judiciary Building in Washington, D.C., headquarters of the Federal Judicial Center

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Let’s start with the constitutional limits against which any proposal like this one is going to be measured. First, and most easily dispatched, is the Appointments Clause of Article II. Assuming that the A3IG is an “inferior” officer (as executive branch inspectors general most likely are under current case law), Congress has the power to vest their appointment “in the Courts of Law,” rather than the President. So Congress could give the Supreme Court (if not the Chief Justice)¹ the power to appoint the A3IG. And so long as the A3IG is an inferior judicial officer, the appointment would not have to require Senate confirmation.

It gets trickier if Congress wanted to impose substantive restrictions on when the A3IG can be removed from office (especially given the current Court’s hostility to Morrison v. Olson, which upheld “for cause” removal restrictions for inferior executive officers). Those limits (1) could be made severable in the statute (so that the rest of the statute would survive even if those were struck down); and (2) are arguably on firmer footing insofar as the A3IG is a judicial officer appointed by the Supreme Court, as opposed to an executive officer appointed by someone other than the President. But my own view is that this proposal is worth it even if the A3IG serves at the Supreme Court’s pleasure. Even then, Congress could require the Supreme Court to provide a public report on the reasons for removing the A3IG prior to the expiration of a fixed (say, five-year) term.

The other significant constitutional constraint is the ban on “extrajudicial revision”—the idea that non-Article III actors cannot sit in judgment of Article III judges (and lower-court judges can’t sit in judgment of the justices). This is why, for instance, the Judicial Conference of the United States (comprised by the Chief Justice, the chief judges of each circuit, and a number of district judges), which generally has the power to impose discipline on lower-court judges, can’t do so against the justices. (See, e.g., the terms of the Judicial Conduct and Disability Act of 1980.)

But this is where the proposal, at least as I’d structure it, is designed entirely to avoid the biggest constitutional problem with accountability reforms for the Court. Yes, the A3IG should have coercive investigatory and disciplinary authority over (1) all non-judge employees of Article III courts, including the Supreme Court; and (2) all employees of non-Article III courts, including non-Article III judges (such as bankruptcy and magistrate judges). There’s no constitutional problem there. And with regard to Article III district and circuit judges, the A3IG can refer disciplinary matters to the Judicial Conference (which already has the statutory power to act in such cases, thanks to the 1980 Act—authority that was carefully designed to avoid constitutional problems).

With regard to the justices, and here’s where it gets complicated, it seems to me that Congress can (1) require the justices to make annual financial and ethics-related disclosures to the A3IG; (2) give the A3IG the power to investigate and monitor the justices’ compliance with whatever financial and ethical rules apply to the justices (including those they impose upon themselves); and (3) require the A3IG to generate and issue annual reports of non-compliance with those rules, or with the A3IG’s efforts to investigate compliance with those rules, both (a) publicly; and, if any information needs to be sealed/redacted for prescribed privacy or security reasons, (b) in private to the House and Senate Judiciary Committees (with a redacted version for public access).

The reporting requirement has three purposes. The first is to help Congress identify areas in which the rules may be vague or unclear, such that statutory reforms are needed no matter how “well” (or not) the justices are behaving. The second is to incentivize the justices to do their best to comply with the rules, such as they are—to avoid the naming and shaming that ought to follow from reported non-compliance. And the third is to empower Congress, in truly egregious cases, to exercise the one enforcement mechanism everyone agrees would be constitutional—the impeachment power. Instead of having to rely upon competing media reports about alleged bad behavior by the justices, Congress would have the observations and paper trail created by the very officer whose job is to be a neutral monitor of the justices’ compliance with whatever rules apply—an officer appointed by the Court. It’s not an enforcement mechanism, per se; but it’s as close as I think Congress can get without raising constitutional hackles.

As the experience with executive branch IGs (especially in recent years) drives home, inspectors general are no panacea. Sometimes, their lack of true independence becomes an issue, as when President Trump fired five of them across a six-week period in 2020. In the other direction, concerns have been raised about the specter of capture—and the possibility that inspectors general become so embedded within the culture of the government entity for which they are responsible that they fail to adequately enforce their oversight and accountability mandates, especially when tasked with institutional failures as opposed to bad actions by individual bad actors. It’s a lot easier for an inspector general to document a single case of misconduct by a single actor than a pattern of misbehavior carried out with full knowledge (if not intent) of the agency leadership. These concerns are all well-taken.

But it strikes me that this is a case in which the perfect is the enemy of the good. I do not believe it is constitutionally possible to create a truly direct enforcement mechanism against the justices, short of impeachment, for just about anything—including non-compliance with ethics or financial disclosure rules. At the same time, I do believe that some kind of inspector general for the judicial branch is long overdue—for lots of reasons, only some of which involve the Supreme Court. There are too many examples of bad behavior by personnel on lower federal courts, including district and circuit judges, for which the cumbersome, judge-driven process created by the 1980 act has proven woefully insufficient.

To that end, an A3IG kills two large birds with a single stone. It creates a more independent mechanism for reviewing and documenting misbehavior by all employees of the judicial branch, from elbow clerks to justices and everyone in between. And it provides the closest thing to an enforcement mechanism for the Court that we’re likely to see survive constitutional muster. It ought to be a no-brainer politically (at least when there is once again a legally constituted House of Representatives). And it’s an unfortunate sign of the times that, even as folks like Justice Barrett publicly concede the need for the justices to be subject to more specific rules governing their personal behavior, it probably has no chance of going anywhere.

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We’ll be back Monday with our regular coverage of the Court. Until then, thanks for reading; I hope you have a great weekend!

1. The Grassley/Sensenbrenner bill gives the appointment power to the Chief Justice, who also has the power to appoint or assign a number of other individuals to various positions within the judicial branch. I think there’s a meaningful debate about whether, where the individual at issue is an “officer of the United States,” the appointment has to come from the full Court rather than the Chief Justice. But there’s no dispute that either the Chief Justice or the full Court has the power to appoint inferior judicial officers, and the bill could be written to reflect that consensus.