The Senate Judiciary Committee on Tuesday held its first hearing on the Supreme Court’s mounting ethics woes, a response to a recent string of stunning revelations that Justice Clarence Thomas failed to properly disclose a property sale and hundreds of thousands of dollars in luxury gifts from a billionaire conservative donor.
The hearing didn’t reveal anything new about the court’s ethical morass. No justice agreed to appear for testimony. Chairman Dick Durbin (D-Ill.) had politely requested Chief Justice John Roberts testify or appoint another justice to appear, but Roberts declined, citing “separation of powers concerns and the importance of preserving judicial independence.” Durbin took issue with Roberts’ refusal to appear in his opening remarks.
“Answering legitimate questions from the people’s elected representatives is one of the checks and balances that helps preserve the separation of powers,” he said.
Democrats hoped to provide checks and balances to the court’s failure to adopt a binding code of conduct. Over the last two years, the court has repeatedly found itself under fire for ethical missteps, including over the relationship between Thomas and billionaire Harlan Crow, Thomas’ refusal to recuse from a Jan. 6 case that related to his wife’s role in the insurrection, Justice Neil Gorsuch’s sale of a property to the head of a law firm and the leak of Justice Samuel Alito’s decision overturning Roe v. Wade and other leak allegations.
“The court has conclusively proven that it cannot police itself,” Sen. Sheldon Whitehouse (D-R.I.) said.
But if anything was clear after the three-and-a-half-hour hearing, it was that Republicans don’t want to intervene in any way in the Supreme Court’s mess. That includes not even considering legislation offered by one of their colleagues, Sen. Lisa Murkowski (R-Alaska), to simply require the court to create a code of conduct for itself within a year.
Sens. Lindsey Graham (S.C.) and Thom Tillis (N.C.) were the only Republicans to briefly agree that something needs to change at the court. But they said the justices, not Congress, should handle it. Graham acknowledged the plummeting levels of public trust in the court and that the court has a lower threshold for ethics violations than other branches of the government.
“I’m not into micromanaging the court,” Graham said. “What I would urge the court to do is take this moment to instill more public confidence. So I’m not going to vote for any of these bills. But I think we’d all be better off if they did that.”
Most GOP committee members didn’t even talk about a code of ethics for the court, which was the whole point of the hearing. Instead, they routinely accused Democrats of trying to discredit Thomas and other conservative justices because they didn’t like their rulings in various cases. They talked about protecting Supreme Court justices’ safety.
Sen. John Cornyn (R-Texas), in a move that was questionable in its effectiveness, played a video of Thomas in his Senate confirmation hearing 32 years ago, defending himself against Anita Hill’s sexual harassment allegations against him.
“It provides important context for today’s hearing,” Cornyn said of the clip because it is proof that Supreme Court justices have been “subject to relentless campaigns of harassment and intimidation.”
When they weren’t accusing Democrats and “the radical left” of running a smear campaign against the court, Republicans leaned hard on the separation of powers argument raised by Roberts in a letter he recently sent to the committee in response to senators’ questions about the court’s ethics mess. In it, Roberts disputed the idea that Congress could require the Supreme Court to adopt a code of conduct or require it to abide by any other ethics rules.
“Some Democrats want Congress to override the Supreme Court and apply rules to its justices,” Sen. John Kennedy (R-La.) said. “The constitutional separation of powers means that no branch of the federal government can dictate how another should govern itself.”
This argument amounts to a theory of a unitary Supreme Court, whereby, like the Unitary Executive Theory popular among legal conservatives, the highest court has imperial authority above and beyond the legislative and executive branches. Former Attorney General Michael Mukasey, a GOP witness, said he believed that the ethics laws Thomas is accused of violating would be unconstitutional.
This, however, goes against the text and structure of the Constitution and the original understanding of the federal judiciary at its creation. No citation of separation of powers should be raised without also noting the equally important concept of checks and balances, Amanda Frost, a University of Virginia Law School professor, said in her testimony.
“The role of the Congress is to establish the Supreme Court,” Frost said. “It’s not just permitted. It’s required.”
Congress created the federal judiciary in the Judiciary Act of 1789, which set the number of justices, the court’s quorum rules and imposed an oath of office that all federal judges, including the justices, must take.
Over the years, Congress has used the authority granted by the Constitution to change the shape and power of the court. For example, Congress changed the size of the court six different times. It also has the authority to strip the court of jurisdiction over issues not explicitly stated in Article III of the Constitution.
Just as it required an oath of office in 1789, Congress can enact ethics rules for the court. The only reason that questions have been raised about Thomas’ failure to disclose the luxury gifts from Crow is that Congress required justices to disclose their finances in the Ethics in Government Act. More recently, in 2022, Congress passed legislation by a unanimous vote in the Senate to impose disclosure requirements on the justices’ stock trades.
What comes next for the committee is unclear. There are no further scheduled hearings aimed at investigating the court’s ethics. However, some Democrats made it clear their desire to continue to investigate, including Sens. Richard Blumenthal (D-Conn.) and Whitehouse.
“I think we need a proper investigation done by the Department of Justice because there are allegations of criminal wrongdoing here,” Blumenthal said. “And in the absence of an investigation by the Department of Justice, we have a role to play in Congress.”
As the hearing wound down, Sen. Peter Welch (D-Vt.), perhaps exasperated by not making headway with Republicans after hours of testimony, interrupted a GOP witness explaining the technicalities of the court to ask the basic question that nobody could seem to answer.
“As a citizen, you know, we have different points of view,” Welch said. “But what is the problem with a Supreme Court justice saying, ‘Let’s just have a code of conduct that applies to all of us?’”