Rep. Jose Serrano, D-N.Y., asked whether the code of judicial conduct -- a set of ethical principles adopted by the Judicial Conference -- should be binding to Supreme Court justices. Currently, the code only applies to lower court judges, although Supreme Court justices often follow the guidelines.
Kennedy said he did not feel the code should be binding.
"There's a legal or constitutional dissonance or problem," he said, noting that the rules are made by district and appellate court justices. "We would find it structurally unprecedented for district or appellate court judges to make rules that the Supreme Court would follow."
Justice Breyer said, "We do follow the rules and they do apply," but he added that, unlike in the lower courts, if a Supreme Court justice recuses himself from a case his vote cannot be replaced.
"It's a different thing ... being a Supreme Court justice," he said. "You have a duty to sit because there is no one to replace me if I take myself out, and that could sometimes change the result."
Kennedy added that if the court deadlocks 4-4 on an issue, the lower court ruling stands.
"If we have one of us recused from a case and we come out 4-4," he said, "we've wasted everyone's time."