The Supreme Court is facing the most public scrutiny it has seen in decades, following revelations that Justice Clarence Thomas hid lavish gifts he received from a billionaire conservative donor ― revelations that in turn have snowballed into stories about other justices’ ethically dubious financial arrangements.
In response, Democrats in Congress, led by Senate judiciary committee Chairman Dick Durbin (D-Ill.), have sent letters to Chief Justice John Roberts politely requesting that he appear before a committee (or send another justice in his stead), and asked for answers on a range of ethics-related questions. Roberts has largely rebuffed Congress with separation-of-powers claims, saying the court will continue to police itself.
Late Monday afternoon, Roberts provided a brief reply to questions Durbin posed about the court’s lack of a binding ethics code after the chief justice refused to testify.
A Senate judiciary committee hearing on Supreme Court ethics reform is set for Tuesday. But it will be only the second hearing Congress has held over the past two years on the subject, even as a steady flood of corruption scandals and ethical lapses have emerged from the court.
The slow movement by Democrats on Capitol Hill raises questions about whether they actually want to challenge the courts’ power grabs and ethical failures, even as public opinion on the court and its decisions plummets.
“The Senate Judiciary Committee’s scheduled hearing is a step in this direction, but we need to see more consistent oversight and strong action to [rein] in the Court’s ‘emperor has no clothes’ approach to ethics and address the Court’s legitimacy crisis,” Russ Feingold, president of the American Constitution Society and a former Democratic senator from Wisconsin who served on the judiciary committee, said in a statement to HuffPost.
There is a lot that Congress could investigate. Over the past two decades, Justice Clarence Thomas failed to disclose hundreds of thousands of dollars’ worth of luxury gifts from the billionaire conservative donor Harlan Crow. Thomas also failed to disclose his sale of a property to Crow, who has helped fund efforts to push the court to the right. Justice Neil Gorsuch, meanwhile, failed to report that the head of a major law firm with business before the court purchased more than $1 million in property from him.
These disclosure failures follow the May 2022 leak of Justice Samuel Alito’s decision in Dobbs v. Jackson Women’s Health Organization that ended women’s federal right to an abortion by overturning Roe v. Wade. Roberts ordered an internal investigation, which failed to find the leaker. A final report revealed that the investigation only lightly probed the justices about their possible role and did not make them sign sworn affidavits like all other staffers.
Later, Rev. Rob Schenck, a former evangelical leader who ran a lobbying campaign to influence the court to overturn Roe, alleged that Alito previously leaked his 2014 Hobby Lobby decision to a supporter.
The House judiciary committee held one hearing featuring Schenck’s testimony in 2022, before Democrats handed the gavel to Republicans. The Senate judiciary committee is set to hold a hearing on the court’s ethics on Tuesday. Durbin has also exchanged letters with Roberts, as has Sen. Sheldon Whitehouse (D-R.I.), the chair of the judiciary subcommittee that covers the courts.
“They need to investigate Clarence Thomas and Harlan Crow and all the related corruption,” Sarah Lipton-Lubet, president of the Take Back the Court Action Fund, said. “They need to pass ethics legislation that will mean for the first time the Supreme Court has an actual binding code of ethics.”
As with a lot of issues in the Democratic Party at the moment, Democrats in Congress may be kicking the wheels here in part because of the party’s generational divide.
Older and long-serving Democratic elected officials “came of age in the warm afterglow of the Warren Court,” a rare period when the court expanded rather than restricted rights, “and who thus cling to the outdated view of the Supreme Court as a force for good,” Harvard Law School Professor Maya Sen theorized after Roberts declined Durbin’s invite to testify.
This attitude could impede an actual investigation into the court, as older Democrats still believe that the court’s legitimacy is owed, not earned.
“Old habits die hard,” Brian Fallon, executive director of Demand Justice, a progressive legal group, said. “There’s still an instinctive urge among Democrats of a certain age to defend even a broken institution because of the lessons they learned in fifth grade civics class.”
There is also a pervasive cynicism that afflicts many long-serving lawmakers who come to believe that it’s not worth the effort to use their power to force legislative or interbranch fights, Fallon said.
Just look at how Democrats have handled the situation of judiciary committee member Sen. Dianne Feinstein (D-Calif.), who has been absent from the Senate since February due to illness and age. Durbin asked Republicans to “show a little kindness” and allow Democrats to replace her on the panel. But Republicans refused to support a new organizing resolution to switch Feinstein out on the committee, because that would help Democrats confirm more judges.
“The reaction to the aftermath of the Republicans predictably blocking it is like, ‘Well, we tried,’” Fallon said.
This doesn’t mean the investigation into the court’s ethical morass won’t be serious, even if Democrats can’t pass legislation to require the court to adopt a code of conduct. There is increased support from judiciary committee members, including Whitehouse and Sen. Richard Blumenthal (D-Conn.), to fully investigate the court. The court should consider subpoenas for not only Thomas and Roberts, but also Crow, Blumenthal told MSNBC last week.
A “charitable explanation” for Durbin’s slow-walking and deference to the court is that he “would like to lay a marker down that he gave Roberts repeated opportunities to clean up his own house and he’s sort of reluctantly being pressed into conducting his own investigation because the judicial branch won’t tend to its own affairs,” Fallon said.
“Instead of declining to call Clarence Thomas to testify because you think he won’t comply, call him to testify,” Lipton-Lubet said. “Let him refuse. Let the people see that. Doing that can illustrate the problem better than half a dozen sternly worded statements.”
But if the committee’s efforts turn into “a box-checking exercise” that just looks to “toss the hot potato into Roberts’ lap,” Fallon says, “that would be a failure.”