Democrats told a tense oversight hearing that the Supreme Court must adopt a code of conduct governing justices’ behavior or Congress will impose one on them, while Republicans pushed back, saying Democrats have manufactured a phony ethics crisis to justify clamping down on the conservative-led court.
Discussion at the May 2 hearing largely centered on Supreme Court Justice Clarence Thomas, a conservative jurist recently revealed to have taken luxurious vacations provided by wealthy Republican donor Harlan Crow without publicly disclosing them. Democrats say the gifts in themselves are proof of corruption, but legal experts say Thomas did nothing wrong in not disclosing the vacations, which he was advised didn’t have to be reported. Legal experts also point out that there was no conflict of interest because Crow didn’t have any business before the Supreme Court.
Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) had invited Chief Justice John Roberts, who’s both the presiding justice of the nation’s high court and head overseer of the federal judiciary, to testify at the hearing in person, but Roberts declined the invitation, saying his attendance could harm the independence of the judiciary.
Sen. Richard Blumenthal (D-Conn.) said at the hearing that it was “judicial malpractice” for Roberts to skip the committee hearing.
Legal experts say it isn’t clear that they’re required to do so. Although they’re members of the federal judiciary, Supreme Court justices enjoy a level of independence that the rest of the federal judiciary doesn’t. This is because the Supreme Court has a special status because it was created by the U.S. Constitution, not by Congress. Legal experts say this means that only the Supreme Court can regulate the internal workings of the Supreme Court.
Durbin slammed the court.
“We are here today because the Supreme Court of the United States of America does not consider itself bound by these rules,” he said.
“This is not the ordinary course of business, nor should it be a standard for those of us in public service. We wouldn’t tolerate this from a city council member or any alderman. It falls short of ethical standards we expect of any public servant in America, and yet the Supreme Court won’t even acknowledge it’s a problem.”
If “the court will not act, Congress must,” Durbin said.
He also said he was “troubled by the suggestion that testifying to this committee would somehow infringe on the separation of powers or threaten judicial independence.”
“In fact, answering legitimate questions from the people’s representatives is one of the checks and balances that helps preserve the separation of powers,” Durbin said.
Former Judge Michael Luttig, who was appointed to the U.S. Court of Appeals for the 4th Circuit by former President George H.W. Bush, filed a written statement with the committee.
Luttig said Congress “indisputably has the power under the Constitution” to “enact laws prescribing the ethical standards applicable to the nonjudicial conduct and activities of the Supreme Court of the United States.”
Amanda Frost, a professor at the University of Virginia School of Law, told the committee that Congress needs to regulate the Supreme Court.
“In recent years, justices have repeatedly violated laws regulating judicial ethics,” Frost said.
“Recurring ethics violations by some justices, combined with the court’s failure to address these problems ... demand a congressional response.
“The Constitution grants Congress the authority to legislate on matters of judicial administration and ethics, and such legislation will strengthen the judicial branch. In light of the Supreme Court’s failure to take action, Congress must step in to protect the justices from themselves.”
Sen. Lindsey Graham (R-S.C.), ranking Republican member on the committee, said the newfound interest in Supreme Court ethics is part of an “unseemly effort by the Democratic left” to attack the legitimacy of the court that has become more conservative in recent years.
“This is not going to work,” Graham said.
While committee Democrats accused conservative justices of ethical shortcomings at the hearing, Republicans said Democrats are leading a witch hunt against the conservative-dominated court. Republicans highlighted purported ethical lapses by liberal justices, said the U.S. Constitution doesn’t allow lawmakers to regulate the justices’ behavior, and accused Democrats of undermining the justices’ personal security by cheering on angry mobs. Republicans also faulted U.S. Attorney General Merrick Garland for not enforcing a federal law that prohibits picketing at the homes of justices, saying his refusal to act is endangering the justices and their families.
Republicans said threats against the Supreme Court have escalated since the May 2022 leak of the draft majority opinion in Dobbs v. Jackson Women’s Health Organization, the decision that overturned Roe v. Wade, finding that there was no constitutional right to abortion and returning regulation of abortion to the states.
The leak was followed by months of raucous protests at the homes of the conservative justices in Maryland and Virginia, targeted harassment of justices in public by left-wing activists, and angry words in Congress. One man was arrested and charged with plotting to kill Justice Brett Kavanaugh.
Republicans also repeatedly said at the hearing that Senate Majority Leader Chuck Schumer (D-N.Y.) put the justices’ lives in danger on March 4, 2020, when he harangued the court at a pro-abortion rights rally outside the courthouse.
“They’re taking away fundamental rights,” Schumer said as the case was being argued inside. “I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind!
“And you will pay the price! You won’t know what hit you if you go forward with these awful decisions.”
Roberts released a statement later that same day condemning Schumer’s remarks.
“Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous,” Roberts said. “All Members of the Court will continue to do their job, without fear or favor, from whatever quarter.”
Sen. Mike Lee (R-Utah) said at the hearing that the left was engaged in a “thuggish shakedown.”
“‘Nice Supreme Court you’ve got there, America. Sure would be a shame if something happened to it,’” Lee said, expressing his interpretation of Schumer’s 2020 speech.
“The truth is the left simply disagrees with his decisions ... and they obviously can’t persuade the American people to adopt their radical policies through legislation, so they’re attempting to destroy the court’s credibility and intimidate the Republican-appointed justices and their families, starting with Justice Thomas.”
Former U.S. Attorney General Michael Mukasey, an appointee of former President George W. Bush, told the committee that Democrats’ concerns about the ethics of the Supreme Court were overblown.
“It is impossible to escape the conclusion that the public is being asked to hallucinate misconduct so as to undermine the authority of justices who issue rulings with which these critics disagree, and thus to undermine the authority of the rulings themselves,” Mukasey said.
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