Washington — Chatter on Capitol Hill about ethical standards at the Supreme Court has reached a fever pitch following the steady stream of revelations about Justice Clarence Thomas’s relationship with a Republican real estate magnate.
But despite the growing chorus of voices calling for a binding code of conduct for the justices, the White House has remained on the sidelines of the debate, puzzling court watchers who believe input from President Biden could add to the momentum growing behind a legislative response.
“The Supreme Court is not popular right now in this country, and specifically among Democrats because of its recent rulings on abortion, guns, the environment and more,” said Gabe Roth, executive director of Fix the Court, a group that advocates for more accountability and transparency at the Supreme Court. “So the idea that you wouldn’t want to use those political headwinds and call for reform at the court seems a bit strange.”
Democratic lawmakers have renewed their focus on the ethical rules governing the Supreme Court after ProPublica published a series of reports revealing that Thomas did not disclose lavish trips and a land deal with billionaire real estate developer Harlan Crow. The latest report, published Thursday, showed that Crow paid for two years of tuition at private schools for Thomas’s grandnephew, which also was not shared by the justice on financial disclosure forms.
The findings regarding Thomas underscore the differences between lower court judges, who must abide by a binding code of conduct, and the nine members of the Supreme Court, who are not covered by the ethics rules.
“If we have an institution at the top of the most powerful branch standing apart in terms of their ethical responsibility, that’s a real problem for the perpetuation, the continuation of our healthy democracy,” Roth said.
And while he appreciates that the Biden administration weighs in on cases before the Supreme Court, the White House has a “responsibility to weigh in when other government institutions aren’t keeping up their end of the bargain when it comes to maintaining public trust.”
Mr. Biden has not hesitated to criticize the Supreme Court for its recent decisions on abortion, the Second Amendment and climate change. But when pressed last week by CBS News on whether the president believes there should be a code of conduct for the Supreme Court, White House press secretary Karine Jean-Pierre deferred to Congress.
“As it relates to the ethics, as it relates to that process, the Senate is clearly moving forward with their own Senate procedural process,” she said Thursday. “I’m just going to leave it there for now.”
The Senate Judiciary Committee held a hearing last Tuesday examining the Supreme Court’s ethical standards, though Chief Justice John Roberts declined an invitation to answer questions from the panel in-person. Instead, he attached to a letter to Judiciary Committee Chairman Dick Durbin a three-page “Statement of Ethics Principles” signed by the nine justices, to which Roberts said they all adhere.
But Nancy Gertner, a former federal judge in Massachusetts, said Roberts’ letter is an attempt to justify the status quo of the court policing itself, even as the latest disclosures demonstrate the need for change.
“This court is exercising the enormous power that the Supreme Court has — it has shown itself not to be reticent about overturning precedent, decades of precedent. It has shown itself not to be reticent about bending procedures to get cases before it that it wants to hear. It’s shown itself not reticent to exercise the power the court has always had,” she said.
“At the same time, there are concerns about ethical issues that are not illegitimate concerns and that have come up before, to be sure,” Gertner continued. “The combination of those two factors it seems to me cries out for change, and yes, Biden should be someone who weighs in on this. The Congress should weigh in on this.”
Several legislative proposals involving ethics rules for the Supreme Court have been introduced in the Senate, including a bipartisan proposal that would give the court one year to create and impose a code and require it to appoint an official to investigate alleged violations of the guidelines and federal law. It’s unclear whether there is enough bipartisan agreement on any of the measures to clear Congress, and Republicans have dismissed the criticisms of Thomas as part of a broader attempt to delegitimize the Supreme Court and its 6-3 conservative majority.
In addition to the bills in Congress, a 33-member commission created by Mr. Biden — Gertner was one of the members — studied proposals to reform the court. The commission concluded in its final report that there would be benefits to a code of conduct for the justices, enacted either externally by Congress or internally by the court itself.
“A code of conduct for the Court would bring the Court into line with the lower federal courts and demonstrate its dedication to an ethical culture, beyond existing statements that the Justices voluntarily consult the Code,” the commission’s report read.
The panel unanimously voted to send the report of its findings to Mr. Biden in December 2021, but nearly 18 months later, he has yet to publicly address its findings.
“The president has seen the report,” Jean-Pierre said. “We have said many times before he appreciated the bipartisan commission that came together and put the report together.”
Bertrall Ross, a law professor at the University of Virginia who served on the commission, said it’s “disappointing” the president has chosen not to act on the findings, particularly since they are relevant to the issues of the day.
“It’s not only important, but imperative that the president be involved. This is a critical issue in terms of our republican form of government to have an independent court that is uncorrupt, credible and believed to be uncorrupt and credible by the American people,” he told CBS News. “To the extent that the court’s credibility is in question, that raises the cost for the entire structure of our government because we need a credible and legitimate court. And so, given the importance of the issue and the fact that the president is the lead institutional actor in our republican frame of government, he should be speaking out about this.”
Ross also said it was a “wasted opportunity” that Mr. Biden has not implored the Supreme Court or Congress to enact rules to ensure the justices are acting in accordance with ethical standards and make sure the American people believe the court is acting credibly.
“Court expansion, term limits, those are hugely controversial, and the president doesn’t really have the power to really enact those things. Those are kind of long-term thoughts on reform, and I understand not taking those up right now,” he said. “We have a lot to deal with as a nation. The court is very important, but these types of reforms are going to require a long-term conversation among the American people. But the code of ethics for me is something that is quite immediate and quite imperative.”
