Democrats Push Bill to Regulate Supreme Court

Democrats Push Bill to Regulate Supreme Court
Senate Environment and Public Works Committee member Sen. Sheldon Whitehouse (D-R.I.) questions Andrew Wheeler during his confirmation hearing to be the next administrator of the Environmental Protection Agency in Washington on Jan. 16, 2019. (Chip Somodevilla/Getty Images)
Matthew Vadum

Congress must impose a code of conduct on the Supreme Court that requires justices to recuse themselves when a financial connection exists between the justice or the justice’s family and someone having business before the court, a Democrat-controlled congressional oversight committee heard on June 14.

If the Supreme Court won’t act, Congress will, Sen. Sheldon Whitehouse (D-R.I.) said at the meeting of the Senate Judiciary Committee’s Subcommittee on the Federal Courts, Oversight, Agency Action, and Federal Rights.

The subcommittee was reviewing the proposed Supreme Court Ethics, Recusal, and Transparency Act (SCERT) of 2023 (S.359), which Whitehouse, its chairman, introduced in February. Rep. Hank Johnson (D-Ga.) introduced a companion bill, H.R. 926, in the House of Representatives at the same time.

Whitehouse’s bill is co-sponsored by 21 senators, including Cory Booker (D-N.J.), Dianne Feinstein (D-Calif.), Mazie Hirono (D-Hawaii), Mark Warner (D-Va.), and Bernie Sanders (I-Vt.), who caucuses with the Democrats.

Whitehouse is an outspoken critic of the Supreme Court and, in particular, conservative justices such as Clarence Thomas.

Democrats are outraged that wealthy Republican donor Harlan Crow reportedly gave Thomas luxurious vacations, tuition support for a grandnephew he raised, and purchased a property from the justice’s family. Thomas didn’t disclose them, saying he was advised that it wasn’t required.

He has vowed to disclose such events going forward.

While Democrats say the gifts in themselves are proof of corruption, legal experts disagree. Legal experts also point out there was no conflict of interest because Crow didn’t have any business before the high court.

While recent congressional hearings about Supreme Court ethics have been tense and filled with rancor and accusations, no voices were raised at this gathering.

That may be because no Republican senators spoke at the hearing. At other hearings, Republicans have strenuously objected to Democrats’ efforts to use legislation to regulate the Supreme Court. Republicans argue that the constitutional doctrine of separation of powers prevents Congress from regulating the justices’ behavior. Republicans have suggested that Democrats only want to move against the court because its conservative majority has been rendering decisions they find objectionable.

For example, at a May 2 hearing, former U.S. Attorney General Michael Mukasey, an appointee of President George W. Bush, told lawmakers that Democrats’ concerns about the ethics of the Supreme Court were self-interested and 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.

At this hearing, Whitehouse said that last month, Chief Justice John Roberts during a speech “acknowledged the court has more to do, that justices are continuing to look at things they can do to give practical effect to that ethics commitment, and that he’s confident that there are ways to do that, ways to do more,” referring to an address that Roberts delivered on May 23.

“Bogus personal hospitality, obvious conflicts of interests, phony front group anarchy. These are all areas ripe for repair,” he said.

“The American people are tired of waiting,” Whitehouse said.

“A new poll released the same day as the chief justice’s remarks shows that almost 60 percent of Americans disapprove of the way the Supreme Court is doing its job. And that Americans are more likely to think that the justices’ honesty and ethical standards were low or very low. For an institution that depends on the public’s faith to carry out its functions, that is unsettling territory. If the Supreme Court isn’t going to do anything to restore the public’s trust, it’s up to us in Congress.

“We need to know more about front groups that helped appoint Trump’s justices, and then appear as litigants before those same justices,” he said.

Whitehouse also took aim at Thomas, who was appointed in 1989 by Republican President George H.W. Bush, saying that the justice has refused to recuse himself from cases involving the disputed 2020 election or the events of Jan. 6, 2021, a congressional security breach that Democrats argue constituted an insurrection.

Thomas “voted to stop the January 6 committee from getting access to White House communications that may have included Justice Thomas’s wife’s texts to the White House chief of staff about overturning the 2020 election,” the senator said, referring to Thomas’s wife, conservative activist and Trump supporter Ginni Thomas, who has said she doesn’t discuss court business with her husband.

“The lawfulness of that failure to recuse depends on a fact: What did Justice Thomas know about his wife’s insurrection activities and when did he know it?” Whitehouse said.

The chairman of the full committee, Sen. Dick Durbin (D-Ill.), also spoke at the hearing.

“We need to restore public confidence and trust our Supreme Court,” he said. “That cannot be done when they operate in the dark and in secrecy.”

“Today’s hearing will discuss recusal transparency. We’ve seen interesting movement on this issue in the Supreme Court with at least one justice, Justice Elena Kagan,” Durbin said.

“She’s now providing public explanations for her recusal decisions—she gets it. She understands that when the American people understand her thought process, it lends credibility to her final result. The same thing is true for the rest of the court. The obvious question is, will another justice follow suit?”

Whitehouse’s bill would direct the Supreme Court to issue a code of conduct governing its own members. It would require the Judicial Conference of the United States, a body created by Congress, to issue a code of conduct for the judges of the courts of appeals, the district courts, and the Court of International Trade.

The bill would also create a system allowing members of the public to file complaints against justices for violating the code of conduct or for engaging “in conduct that undermines the integrity of the Supreme Court of the United States.”

A “judicial investigation panel” comprised of “5 judges selected randomly from among the chief judge of each circuit of the United States” would review and investigate complaints and present its findings and recommendations to the Supreme Court, which would then dismiss the complaints, order disciplinary action, or make changes to the court’s rules or procedures. The panel, which would have subpoena powers, would also have the authority to conduct hearings and release public reports about its activities.

Rules requiring the disclosure of gifts, income, and reimbursements received by any justice and any law clerk to a justice would be established. The proposal would also allow a litigant to file a motion to disqualify a justice from a case, which would be reviewed by a panel of judges.

The measure would also compel a justice to recuse him or herself from a case when he or she knows that a party or its affiliate in a legal proceeding spent “substantial funds” in support of getting the justice confirmed by the Senate. The duty to disqualify him or herself would also apply when a justice, his or her spouse, minor child, or a privately held entity owned by such a person received income, a gift, or reimbursement from a party or affiliate to a proceeding in a six-year period before the justice takes up the case.

Greater disclosure by parties filing friend-of-the-court briefs, which seek to influence the court on specific cases, would be required, according to the bill. The Supreme Court and the Judicial Conference would be directed to prescribe rules forbidding the filing of friend-of-the-court briefs that would lead to the disqualification of a justice from a particular case.

It’s unclear when the subcommittee will vote on the legislation.