Daily Update: A watershed day for sentencing, rules for the Supreme Court?

There’s more analysis of Monday’s court ruling on New York’s stop-and-frisk policy; a look at proposed conduct rules for the Supreme Court; and the strangest moment in politician Anthony Weiner’s campaign.


Tuesday, August 13, 2013

Items To Watch

1. The New York Times links Monday’s two big stories together in a broader context: as a major shift in the treatment of crime. The end of New York’s strict stop-and-frisk policy and Attorney General Eric Holder’s push to reduce mandatory sentences in some drug cases could be watershed moments.

2. In his new series for Constitution Daily, Lyle Denniston looks at how the current national chairman of the Republican Party, Reince Priebus, could affect the democratic process in 2016 if he chooses for his party to boycott the presidential primary debates televised by two networks.

Developing Questions …

Here are some updates on new discussions about top-of-mind constitutional issues.

1. Does the Supreme Court need an official code of conduct?

On August 1st, Connecticut Senator Chris Murphy and Democratic colleagues proposed a bill called the Supreme Court Ethics Act of 2013. According to GovTrack, which calls itself one of the most visited government transparency sites, the chances of the bill becoming law are about two percent.

Nevertheless, this is the latest effort of the Senate to have Congress pass a law requiring the Justices of the Supreme Court to be bound by a code of judicial conduct, as all other federal judges and all other state judges are in the United States. William Yeomans and Herman Schwartz explained this controversy well last year for Politico.

The day before Senator Murphy et al. filed their billed, Amanda Frost, a respected scholar at Washington College of Law at American University in Washington, D.C. put up on the Social Science Research Network a new law review article addressing this important issue, called “Judicial Ethics and Supreme Court Exceptionalism.”

Here is the “Abstract” of her argument: “In his 2011 Year-End Report on the Federal Judiciary, Chief Justice John Roberts cast doubt on Congress’s authority to regulate the Justices’ ethical conduct, declaring that the constitutionality of such legislation has ‘never been tested.’ Roberts’ comments not only raise important questions about the relationship between Congress and the Supreme Court, they also call into question the constitutionality of a number of existing and proposed ethics statutes. Thus, the topic deserves close attention. “

The essay contends that Congress has broad constitutional authority to regulate the Justices’ ethical conduct, just as it has exercised control over other vital aspects of the Court’s administration, such as the Court’s size, quorum requirement, oath of office, and the dates of its sessions.

It also acknowledges, however, that Congress’s power to regulate judicial ethics is constrained by separation of powers principles, and, in particular, the need to preserve judicial independence. Furthermore, legislation directed at the Supreme Court Justices in particular must take into account the Court’s special status as the only constitutionally required court, as well as its position at the head of the third branch of government. Although these are important limitations on Congress’s power, existing and proposed ethics legislation fall well within them.


It was on this day in 1918 that Opha Mae Johnson becomes the first woman to enlist in the United States Marine Corps. Johnson and 300 other women take over clerical duties for Marines who were needed for duty elsewhere.

Closing Notes

1. First Lady Michelle Obama is releasing a rap album, but she won’t be performing on it. It will promote her Let’s Move campaign and feature performances from Run DMC and Jordin Sparks.

2. Anthony Weiner has beers with Buzzfeed’s Ben Smith in probably the strangest moment in his campaign. The 37-minute video on its website was co-produced by CNN. He also drops the F-bomb and makes fun of Buzzfeed for its obsession with cute cat videos.

Editor’s note: The Update is a summary of news and commentary about the Constitution and related issues, as reported around the digital world. Guest contributors and our editorial staff add to the daily update, and we welcome your suggestions (and reports) at editor@constitutioncenter.org.

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