WASHINGTON ― Senate Democrats have been demanding congressional action in response to last month’s bombshell report about Supreme Court Justice Clarence Thomas failing to disclose hundreds of thousands of dollars in luxury gifts from a GOP megadonor.
They’re holding a Tuesday hearing to examine Supreme Court ethics reforms. They asked Chief Justice John Roberts to testify (he declined), so now they’re pressing him to come up with a formal code of conduct for the court. If he won’t do it, Democrats have a bill that will.
That’s a stark contrast to Republicans, who have almost unanimously retreated into silence or scoffed at the idea that Congress should do anything to serve as a check on justices’ behavior. There’s only one GOP senator backing any ethics reforms to the court: Lisa Murkowski of Alaska introduced a bill with Sen. Angus King (I-Maine) that would require the justices to create a code of conduct for themselves and make it public on the court’s website. In other words, the bare minimum.
HuffPost asked GOP senators late last week what they think of Murkowski’s proposal and, more broadly, why they don’t think the Supreme Court is way overdue for ethics reforms.
The question isn’t just pertinent because Thomas has been accepting luxury trips almost every year for more than 20 years from billionaire Harlan Crow and not disclosing them. Or because Thomas sold his ancestral home to that billionaire and didn’t disclose it. Or because that billionaire has had financial interests before the court the entire time. Or because Neil Gorsuch failed to disclose that he sold property for more than $1 million to the chief executive of a law firm that routinely has business before the court.
Or because of all the trips that Supreme Court justices — appointed by presidents in both parties — take all over the world that have been paid for by private entities who may have business before the court and may have influence over those justices in related cases.
It’s because every federal judge in the country has been governed by a written code of conduct since 1973. Except the nine justices on the nation’s highest court. They’ve never had one.
Some Republicans didn’t seem aware of that last part.
“They do,” said Sen. Cynthia Lummis (R-Wyo.), when asked if she thinks the justices should have a formal code of conduct. “Well, not a code. They have what we have, right? They have a setup where they disclose and have parameters around disclosure?”
“They do that now,” said Sen. Chuck Grassley (R-Iowa), the former chairman of the Judiciary Committee, when asked about the idea of justices creating an ethics code for themselves. “They just did it on March 7. What more would you do?”
Grassley was referring to a subcommittee of the Judicial Conference, which sets policy for federal courts, last month tightening gift disclosure rules for federal judges, including Supreme Court justices. The new rules require them to disclose gifts and free trips, or when gifts are being reimbursed by a third party who is not the person giving the gift.
They don’t cover gifts of overnight stays at friends’ vacation homes, though, which was one of the many perks Thomas got from Crow.
The rules change is also not the same thing as Supreme Court justices being bound to a code of ethics. While justices are subject to federal statutes that impose ethical standards on all federal judges, there’s no enforcement mechanism in place for Supreme Court justices to make sure they follow disclosure rules. They make their own rules and it’s on them to follow them. A code of conduct for the court would, at the very least, offer some transparency on what their rules are for themselves.
As it stands, justices simply recuse themselves on their honor when they have a conflict in a case. Their system clearly failed in 2021, for example, when Thomas did not disclose that his wife was involved in the Jan. 6, 2021 plot to overturn the 2020 presidential election while he was continuing to hear and rule on cases related to that plot.
Thomas has also repeatedly failed to file financial disclosures properly. In 2011, he reportedly failed to disclose the income that his wife, Ginni Thomas, received from a mix of conservative think tanks, political groups and educational entities over 13 years.
Despite all of this, Republican senators seem content to let the nation’s highest court carry on as it currently is. Some are dismissing Democrats’ latest efforts as purely political. Some argue it wouldn’t be constitutional for lawmakers to meddle in the court’s affairs.
“Ohhh, I don‘t know about that,” Sen. Joni Ernst (R-Iowa) said of Murkowski’s proposal. “Separation of powers?”
“There’s a reason the separate branches of government were established,” said Lummis. “Good heavens, they’re judges. This is something they can and should do on their own.”
Grassley said it would be “inappropriate and unnecessary” for senators to take any action to impose ethics rules on Supreme Court justices because of the new disclosure regulations put in place for federal courts last month.
“If those aren’t adequate, we aren’t going to know that for a year or two,” said the Iowa Republican. “So, just wait for a year or two to see how the new rules work out.”
Even Sen. Susan Collins (R-Maine), who is considered one of the few moderates in the chamber and who often sides with Murkowski on various issues, didn’t weigh in on her bill.
“This is a very complex issue involving the separation of powers, and Senator Collins believes the appropriate forum for these discussions is the Judiciary Committee,” said Collins spokeswoman Annie Clark. “If the Committee holds a hearing on this proposal and others, she looks forward to seeing the results of it.”
“Read the Constitution, folks.”
But some legal experts said it’s nonsense to suggest that lawmakers would be overstepping if they pushed through ethics reforms for the court.
“Read the Constitution, folks,” said Caroline Fredrickson, a distinguished visiting professor at Georgetown Law and a senior fellow at the Brennan Center for Justice. “Congress is responsible for creating the jurisdiction for the Supreme Court, and Congress creates the lower courts ... It’s a really self-serving argument that the court makes that somehow there’s this incredible separation of powers issue for Congress to intervene at all.”
Fredrickson, who previously served on President Joe Biden’s Commission on the Supreme Court that examined potential reforms to the court, said Congress has plenty of roles to play in how the court functions. Impeachment is one tool, she said, as is approving the court’s budget. Lawmakers also have the authority to expand the size of the court, which Fredrickson said is “an existential need” to many people at this point.
“Really, the idea that somehow none of this conversation is about how the Supreme Court should absolutely obey the most basic of ethics laws and have a code of conduct really underscores the problem that we have,” she said. “A judiciary that is acting with impunity.”
As for why the Supreme Court hasn’t ever had a formal ethics code, Fredrickson said when the Judicial Conference adopted its code for the lower courts decades ago, it just “didn’t seem so vital” to do the same for the justices.
“They’ve slipped under the radar until now,” she added. “It’s been due to great reporting ... that has really brought the spotlight on the fact that the Supreme Court has not been abiding even by the rules it says it follows, which then makes us look at all the rules that it’s not legally required to follow and ask the question, ‘Why not?’”
All of these issues will be hashed out in Tuesday’s hearing in the Senate Judiciary Committee. What’s clear is that Sen. Dick Durbin (D-Ill.), the chairman, really wants to find a bipartisan way forward. What’s less clear is if or how Republicans plan to engage at all.
A spokesman for Sen. Lindsey Graham (R-S.C.), the top Republican on the committee, said only that “he hasn’t said anything” about Murkowski’s bill or generally about the Supreme Court needing to tighten its ethics rules.
Murkowski, for one, said she hopes her bill can be a starting point for people to realize that ethics reforms on the court aren’t about partisanship, but about restoring public trust in the court, which is at a historic low.
“I know Harlan Crow. I like Harlan Crow. I like Justice Thomas,” she told HuffPost. “I don’t view this as going after Justice Thomas or picking on anybody.”
“Just as we have codes of conduct and disclosures that are required for all of us, is it so unreasonable to suggest the Supreme Court should also have a code of conduct?” she asked. “That the public not only knows exists but knows what it says? Let’s build that trust.”