The Supreme Court’s recent defense of its ethical standards is being met with scorn from Democrats and judicial watchdog groups, who are pushing to intervene in the wake of the high court’s recent controversies.
A ProPublica investigation into undisclosed luxury trips that Justice Clarence Thomas received from GOP megadonor Harlan Crow has set off a firestorm among skeptics of the conservative court.
For starters, the controversy prompted Senate Judiciary Chairman Dick Durbin (D-Ill.) to summon Chief Justice John Roberts to Congress. Sitting justices have testified before congressional committees before, but the appearances usually focus on administrative and budget matters rather than an issue involving the court itself.
Roberts declined the invitation, laying out in a letter to Durbin how “exceedingly rare” it was for a sitting justice, and especially the chief justice, to sit before the committee on matters other than ones considered “mundane.”
In addressing the ethical controversies, Roberts attached a “Statement on Ethics and Principles” signed by all nine justices, which notes they consult the code for lower courts as one of multiple non-binding authorities in handling dilemmas. But Supreme Court justices don’t necessarily need to abide by the same ethical code as other federal judges.
“It meant absolutely nothing,” said Gabe Roth, executive director of Fix the Court. “It was worse than nothing, because at least with nothing, you could potentially convince yourself that maybe the justices would do something. But this is, as I said, just a rehashing of things we already knew.”
The hearing slated for May 2 will go on, Senate Judiciary Democrats vowed, appearing unsatisfied by Roberts’ response, saying it “raises more questions than it resolves.”
“It just highlights how detached the court is from notions of accountability and how unable and unwilling they are to effectively police themselves,” Sarah Lipton-Lubet, president of Take Back the Court Action Fund, said of the recent controversies.
The meeting comes in the wake of ProPublica’s report about trips that Thomas took across the globe on Crow’s private jet and yacht. ProPublica later reported that Thomas didn’t disclose Crow’s $133,363 purchase of a string of properties that the justice and his family owned in Savannah, Ga.
Crow, a billionaire Dallas-based real estate developer who has donated millions to conservative causes, said he never discusses cases with Thomas. Thomas, meanwhile, said he had consulted with his colleagues and was “advised” the trips fell under a personal hospitality exception — an exception the judicial branch clarified last month.
Adding to the controversies, Politico this week first reported that the head of a major law firm with regular business before the court purchased a Colorado property partially owned by Justice Neil Gorsuch days after his confirmation. Gorsuch, who did not return a request for comment on the revelation through a court spokesperson, had disclosed the transaction but left a box for the buyer’s identity blank.
As Democrats and watchdogs express outrage, many Republicans have portrayed Congress’ push as an attempt to smear the court’s conservative majority.
Senate Minority Leader Mitch McConnell (R-Ky.) said on the Senate floor on Wednesday that he had total confidence in Thomas, Gorsuch and the other justices.
“Just yesterday, all nine justices explained in a statement their joint approach to maintaining their high ethical standards. Unlike the activists and elected Democrats trying to tear them down, the justices have proven their sobriety and their judicial temperament over their long and distinguished careers,” McConnell said.
House Judiciary Committee Chair Jim Jordan (R-Ohio) similarly wrote on Twitter, “Justices Thomas and Gorsuch get attacked because they’re preserving our constitution. God Bless their efforts.”
But at least one Republican is now joining the calls for ethics reform. Alongside Sen. Angus King (I-Maine), who caucuses with Democrats, Sen. Lisa Murkowski (R-Alaska) on Wednesday introduced a bill that would require the court to implement a code of conduct within one year of enactment.
“It is critical the public has full faith that their institutions are functioning, including the judicial branch. The Supreme Court must demonstrate independence and fairness as they rule on the laws of the land—and any cracks in the public’s confidence will have damaging repercussions for the state of our democracy,” Murkowski said in a statement.
Roth, whose group consulted on the bill, said additional Republicans had expressed interest in the legislation, but he declined to provide specific names. He added that he is willing to advocate for Congress to withhold the funding for justices’ clerks until the court adopts a binding code of conduct.
“This is not the Clarence Thomas Code of Conduct Act. This is the Supreme Court Code of Conduct Act, and this is something that people have been talking about for three-plus decades,” said Roth.
Anthony Sebok, co-director of the Jacob Burns Center for Ethics in the Practice of Law at Cardozo Law School, suggested extending the code of conduct in place for other federal judges to the Supreme Court.
“I think to most people who think seriously about democratic norms, it is simply absurd that anyone who occupies the office of the judge does not conform to an articulated set of codes of ethics,” said Sebok.
“Now, if that means that we are at a point now where we have just realized that we have a gap here, and we need to go back to the branch that is independent of the original branches and tell them they have to come up with a code of judicial ethics, that would simply be a reasonable alternative,” he added.
Opponents of congressional intervention, however, have raised separation of powers concerns, stressing that the Constitution established one Supreme Court while separately authorizing Congress to structure lower federal courts.
In his 2011 year-end report, Roberts highlighted that the justices voluntarily follow certain financial disclosure requirements prescribed by legislation. But he noted that the court had never addressed whether Congress had the authority to impose such requirements.
“People throwing around the phrase separation of powers as if it’s some magical incantation that lifts the court above and outside of the government just is not the case,” said Lipton-Lubet. “Congress absolutely has the authority and the responsibility to act.”