Berkeley law dean Erwin Chemerinsky is viewed as one of the smartest and more reasonable of progressive academics, lending him an air of credibility that often credits his position without engaging in too much scrutiny of his argument. In other words, if Chemerinsky is for something, the reasons why don’t really matter. But they do matter, and Chemerinky’s op-ed on Congress compelling the Supreme Court to create and subject itself to a code of ethics flops.

This is not to say that the justices of the Supreme Court should not be bound by an ethical code or should be able to engage in conduct that is, or appears  to be, improper. Of course they should be ethical. The problem, however, is twofold. First, can Congress seize control over the Supreme Court by imposing a code of ethics that could dictate the outcome of its ruling? Second, if such a code were crafted, is there any mechanism by which it could be enforced?

In light of the Supreme Court’s unwillingness to adopt an ethics code for itself, Congress must step in and pass a statute imposing standards. All other judges in the country — state and federal — are bound by ethical rules. It is inexcusable that the most important and powerful judges are not.

“All other judges” do not hold constitutional offices. They are lesser officials with, ultimately, the Supreme Court above them, subject to the dictates of the superior judges. That’s the nature of the gig.

Congress should not wait on the court any longer. It has the authority to hold justices to a code of conduct. If it fails to do so, it will share responsibility for the ethics mess at the Supreme Court.

Does it have the authority? That’s one of the core questions, and its bald assertion doesn’t make it so. What provision of the Constitution confers such authority? What caselaw interpretation of the Constitution does Chemerinsky rely upon? Nothing. From there, he goes into arguing the negative, why the arguments against the code aren’t meritorious in his view, but he provides no affirmative basis for the claim that Congress has the authority.

One argument against Congress stepping in is that it would violate the separation of powers for legislators to impose standards on a coequal branch of government.

But separation of powers does not mean that one branch of government operates entirely independent of the others. Congress, for example, regulates many aspects of the Supreme Court, including its size, the salary of the justices and its budget.

This is a classic strawman argument, ignoring the actual issue and tossing in absolute language, “entirely independent,” that misdirects attention. Congress holds the purse strings, and that’s expressly set forth as one of its powers and a check on the power of co-equal branches. Congress also sets the number of justices, the Constitution only dictating that there be a chief without setting a size for the Court.

But once a justice is appointed, his or her decisions are beyond the power of Congress or the Court would be rendered a nullity. That’s the flip side of checks and balances, where the Supreme Court gets to oversee the constitutionality of congressional acts. If Congress could sideline a recalcitrant justice whenever he or she got in the way, it could control the Court’s rulings. That would defeat one of the fundamental purposes of the Court.

For example, a federal law, 28 U.S.C. § 455, requires federal judges, including justices, to disqualify themselves in any proceeding in which their “impartiality might reasonably be questioned.”

And, indeed, it does by its text. But what’s missing from Chemerinsky’s argument is that it’s left to each Supreme Court justice to decide for him or herself whether recusal is appropriate, and there is no appeal.

The chief justice has also raised concerns about recusal in cases in which a justice’s impartiality might be reasonably questioned. He has noted that in the case of the Supreme Court, recusal by a justice would force the court to decide the case in question without its full complement of justices — unlike in lower courts, where a judge who steps aside can be replaced by another judge.

This argument is specious.

Chemerinsky notes that the Court has been left short handed under various circumstances, not the least of which was the year without a replacement after Justice Scalia’s death. But CJ Roberts raised this as a concern, which it is, rather than a stand alone basis to refuse a code of ethics. It’s not the end of the world, but it’s not a good thing either, especially for controversial cases where one justice could shift the majority.

After making what should be, but really isn’t, the uncontroversial assertion that both liberals (but not progressives?) and conservatives should want an impartial Supreme Court, Chemerinsky gets down to the bottom line of what he’s pumping.

Senators Sheldon Whitehouse and Richard Blumenthal, along with other Democrats, have introduced the Supreme Court Ethics, Recusal and Transparency Act. Among other things, it would require the Supreme Court to adopt a code of conduct within 180 days of the bill’s enactment. It also would create a transparent process for the public to submit ethics complaints against justices, to be reviewed by a random panel of chief judges. And it would mandate rules requiring disclosure rules for gifts, travel and income received by justices and law clerks that are at least as rigorous as the House and Senate disclosure rules.

Other than creating a process for public ethics complaints, which would be a fiasco when a million random people file complaints after any decision they hate, it all seems fairly benign. After all, who doesn’t want ethical Supreme Court justices? Who thinks they shouldn’t be taking in big money only because of their public position, even if it’s more akin to Plunkitt’s “honest graft” than anything nefarious.

But it can’t be left to lesser judges to control the authority of constitutional officers to perform their functions. If a justice commits “high crimes and misdemeanors,” the solution is to impeach him or her. And appointees of both sides have long been getting some pretty sweet trips, speaking engagements and books out of the deal. And it is unsavory.

But the fact that it emits the unpleasant odor of “something must be done” doesn’t make it fixable, whether by Congress or anyone else. Perhaps the only real answer is that only justices of the highest ethical fiber should be appointed to the Supreme Court rather than justices who are believed to be reliable team players.