WASHINGTON, DC – OCTOBER 21: Associate Supreme Court Justice Clarence Thomas speaks at the Heritage Foundation on October 21, 2021 in Washington, DC. Clarence Thomas has now served on the Supreme Court for 30 years. He was nominated by former President George H. W. Bush in 1991 and is the second African-American to serve on the high court, following Justice Thurgood Marshall. (Photo by Drew Angerer/Getty Images)
WASHINGTON — U.S. Supreme Court justices should follow a strict code of ethics when receiving gifts and travel or doing business with political funders and attorneys, argued Democratic senators Tuesday at a hearing that Chief Justice John Roberts declined to attend.
After a spate of investigative articles detailing Justice Clarence Thomas’ luxury travel and real estate transactions with a GOP donor, and a property sale by a limited liability company partly owned by Justice Neil Gorsuch to a law firm head, Democratic leaders on the Senate Committee on the Judiciary maintained the highest court in the land cannot be trusted to police itself.
GOP members of the panel dismissed the hearing as “selective outrage” — as ranking member Lindsey Graham of South Carolina put it — against the court’s conservative majority that recently handed down controversial high-profile decisions, including overturning Roe v. Wade and striking down New York’s concealed carry law.
In declining the invitation to testify in front of the committee, Roberts asserted that the court must remain independent and that it adheres to its own set of principles.
In a follow-up letter Monday, Roberts wrote that there are “no set rules” for the court’s adoption of such principles or guidelines.
Committee Chair Dick Durbin of Illinois said Roberts’ reasoning for not testifying before the committee was insufficient.
“The answers we received further highlight the need for meaningful Supreme Court ethics reform. We have the right and rationale to enact such reform. And that’s what we will pursue,” Durbin said during the hearing’s opening remarks.
Debate over new SCOTUS rules
At question during Tuesday’s hearing were several bills aiming to hold the justices to stricter standards, including one recent proposal by Rhode Island’s Democratic Sen. Sheldon Whitehouse, a member of the Judiciary Committee, to establish a transparent code of conduct and procedures for disqualification.
Another recent proposal by Sens. Angus King, a Maine independent, and Alaska’s Republican Sen. Lisa Murkowski, would require the court act to officially establish its own ethics rules and appoint a third party to review potential conflicts of interest.
Whitehouse is the chair of the Judiciary Committee’s Subcommittee on Federal Courts, Oversight, Agency Action and Federal Rights. The subcommittee co-led the hearing.
GOP witness Thomas Dupree, a constitutional lawyer and former George W. Bush administration official, testified that the Whitehouse proposal is “an extraordinary mandate that infringes on the separation of powers, the bedrock principle that underpins our constitutional democracy.”
Dupree served as an assistant attorney general under Bush and is currently a partner at Gibson, Dunn and Crutcher and has argued in front of all 13 U.S. appellate courts and the Supreme Court.
“This bill, and in particular its provision directing the justices to draft the Code of Conduct, put it out for public notice and comment, and then adopt it, seems to be animated by an assumption that the Supreme Court of the United States is no different than the Department of Agriculture or any federal agency that can be commanded by Congress to engage in rulemaking,” Dupree continued. “Suffice it to say that is not how the framers drew it up.”
Not so, argued Democratic-called witness Amanda Frost, a research professor of law at the University of Virginia.
“The Constitution is silent as to how the Supreme Court shall be structured and delegated that task to this branch of government,” Frost said, highlighting the first Congress in 1789 that established the court and its operations.
Frost also called attention to the Ethics in Government Act of 1978, and the Ethics Reform Act of 1989, which requires the justices to disclose gifts.
“The Constitution was carefully designed to ensure that no branch of government is entirely separate and independent from each other. That is the equally familiar constitutional principle of checks and balances,” Frost said.
“… Some justices today are repeatedly violating the ethics laws that Congress applied directly to them. This misconduct requires congressional action to protect the court from itself. For all the reasons I’ve given, Congress has the constitutional authority to enact such legislation.”
Another witness called by the Democrats, former U.S. District Judge for the Northern District of California Jeremy Fogel, said given his decades of relationships with the justices, including Roberts, “it’s awkward for me to be here.”
“And I do not doubt the sincerity of the submissions that the chief and the justices of the court have made to this committee. I think they are given in great sincerity. I think I’m here because I think more is needed,” Fogel said.
Public trust in the court has eroded, he continued, citing polarization, increasingly contentious confirmation hearings, misinformation and disinformation rampant on social media, and the “near disappearance of civics curriculum from our schools.”
“In this fraught environment, I believe that the absence of a formal structure for defining and validating the ethical rules governing the Supreme Court justices is untenable,” Fogel said.
Jet and yacht trips
In the weeks leading up to the hearing, ProPublica chronicled years of private jet and yacht excursions on the dime of billionaire Republican donor Harlan Crow that Thomas never disclosed. The nonprofit investigative outfit also revealed that Thomas did not disclose a real estate transaction with Crow.
Following the ProPublica revelations, Politico reported that Gorsuch did not identify the purchaser who bought a 40-acre plot in Colorado co-owned by the justice — a sale from which he made between $250,001 and $500,000, according to federal disclosure forms. The purchaser turned out to be attorney Brian Duffy of the law firm Greenberg Traurig that has since argued numerous cases in front of the court.
But the panel’s Republican members repeatedly countered with examples of numerous international trips taken by liberal justices Ruth Bader Ginsburg and Stephen Breyer, as well as other university- and foundation-sponsored travel for many of the justices.
Louisiana Sen. John Kennedy, the subcommittee’s ranking member, characterized the recent articles as “hyped-up attempted hit pieces” by the left’s “media allies.”
“They tried going after Justice (Brett) Kavanaugh for buying baseball tickets, Justice (Samuel) Alito for having dinner with people who gossip, the wife of Chief Justice Roberts for hiring good lawyers, Justice Gorsuch for selling land in an LLC — which he properly disclosed — to a major donor to the Democratic Party, for God’s sakes, who never even met, and Justice Thomas for having a rich friend,” Kennedy said.
“Justice (Amy Coney) Barrett if you’re listening, I hope you don’t have library books overdue. If recent history is any indicator you’re next.”
But Frost argued — in response to a question by Sen. Cory Booker of New Jersey, delivered after Kennedy’s comments — “If there was more transparency in the court and its process for dealing with ethical problems, they wouldn’t have certain reporters publicizing certain justice’s problems. We’d have transparency about each and every justice, whether they were abiding by the rules, and what should happen next.”
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