Dem
51
GOP
49
Sens. Lisa Murkowski (R-AK) and Angus King (I-ME) have introduced a bill to require the Supreme Court to adopt and publish a code of conduct within a year of the bill's passage. This approach may make it easier for some members of Congress to vote for it because a congressionally mandated code of conduct could be seen as one branch of government meddling in the internal affairs of another branch. If the bill passes, it would be up to Chief Justice John Roberts to manage the process and determine what should be in it. The code would have to also deal with the tricky matter of enforcement and penalties for noncompliance.
Other senators actually wanted to have a few words with Roberts and invited him to show up and talk to them. He respectfully declined. He wasn't sent a subpoena, so he didn't have to come. His appearance would not violate the separation of powers at all. Congress subpoenas members of the Executive Branch all the time, so why not the Judicial Branch?
Art III, Sec. 1 of the Constitution reads:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Note that bit about "good Behaviour." The code of conduct could name various offenses and declare them as "Bad Behaviour." For example, taking money or payment in kind from anyone except on a purely at-market commercial rate. As to enforcement, could the Supreme Court expel a member from the Court for "Bad Behaviour"? The Constitution is silent on that. Congress can impeach judges and justices, but can the Court expel a justice failing to exhibit good behavior? It is not really clear since the text talks only about what happens if everyone exhibits good behavior, not what happens if they don't. Of course, allowing a majority of the justices to expel one of the others could quickly get us into a "Tennessee Three" situation. But not allowing the Court to police its own would mean that the code doesn't mean anything. If the only remedy for a justice self-dealing is for Congress to impeach him or her, then nothing changes with the code. Congress can do that now, so what would a code change? (V)