In a much-discussed Harvard Law Review article, Stanford Law professor Mark A. Lemley lamented that the newly empowered Roberts Court has become an "imperial Supreme Court," repeatedly using its decisions to arrogate power to the court itself. Based on our review, the U.S. Supreme Court's recently adopted Code of Conduct displays this same "imperial" attitude with respect to ethical issues, eliding ethical mandates that apply to all other judges and seemingly placing the justices beyond the law. For the sake of our judicial system, it is time for Congress to act.

Impartial justice and the appearance of impartial justice are critical to public confidence in our courts. That is why there have been calls for many years for the Supreme Court to enact mandatory and enforceable ethics rules for itself, like those that govern all lower federal courts and the state courts in all 50 states. It took the intense public pressure created by news reports revealing lavish gifts showered on Justice Clarence Thomas and undisclosed luxury vacations provided to Thomas and Justice Samuel Alito to finally move the court to act last year. Unfortunately, the Supreme Court's new Code of Conduct falls short. Its standards are neither mandatory nor enforceable and some, disturbingly, conflict with obligations expressly imposed on the justices by existing federal law.