Washington — The Senate Judiciary Committee on Thursday advanced legislation that would require the Supreme Court to adopt an ethics code, with Democrats following through on their pledge for legislative action after a series of reports about Justice Clarence Thomas’ relationship with a Republican real estate magnate.
Called the Supreme Court Ethics, Recusal and Transparency Act, the bill from lead sponsor Democratic Sen. Sheldon Whitehouse cleared the committee along party lines, 11-10. During the committee’s consideration of the measure, Republicans introduced several amendments touching on the protests outside Supreme Court justices’ homes, the leak of the draft opinion overturning Roe v. Wade, Supreme Court expansion and imposing new rules on reporters who cover the high court.
All of the GOP senators’ proposed changes failed, with the exception of one: An amendment from Sen. John Kennedy of Louisiana that, after it was modified, condemns racist attacks and comments against current or former justices, including Thomas, which passed unanimously.
GOP lawmakers have said Whitehouse’s bill is dead on arrival in the full Senate and Republican-controlled House.
The legislation, which has backing from more than two dozen Senate Democrats, would require the Supreme Court to adopt a code of conduct for the justices and implement procedures to handle complaints of judicial misconduct. It would also require the high court to impose more rigorous rules for the disclosure of gifts, travel and income received by the justices and their law clerks.
The measure calls for the Supreme Court to establish procedural rules that require each party in a case or entities filing friend-of-the-court briefs to disclose gifts, income or reimbursement provided to the court’s members and hardens rules for when justices or judges must recuse themselves from cases.
Judiciary Committee Chairman Dick Durbin, an Illinois Democrat, said the legislation would bring Supreme Court justices in line with other federal officials and is a “crucial first step in restoring confidence” in the high court.
“Unlike every other federal official, Supreme Court justices are not bound by a code of ethical conduct. They are the most powerful judges in America and yet they are not required to follow even the most basic ethical standards,” he said.
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The proposal, though, is highly unlikely to become law due to the opposition from Republicans in the Senate and House. GOP senators have painted the revelations about Thomas as part of a broader attempt by Democrats to delegitimize the high court’s conservative majority after major decisions on abortion, guns, affirmative action and religious rights. House Speaker Kevin McCarthy suggested he does not believe Congress should step in at all.
“I think the Supreme Court, with three separate branches of government, has the ability to oversee themselves in this process just as the House is doing their work here,” McCarthy said at a press conference Monday.
Sen. Lindsey Graham, the Judiciary Committee’s top Republican, put the bill’s prospects in stark terms, saying, “This ill-conceived effort in the name of reforming the court will go nowhere in the United States Senate.”
“This is a bill to destroy a conservative court. It’s a bill to create a situation where conservative judges can be disqualified by statute. It’s a bill to rearrange the makeup of how the court governs itself, and it’s an assault on the court itself,” he said during the Judiciary Committee meeting.
While there have been previous proposals focusing on the ethics rules at the Supreme Court, momentum behind legislative action built after the news organization ProPublica revealed that Thomas accepted luxury vacations and travel arrangements from Harlan Crow, a Texas real estate developer and GOP donor, over the course of their 25-year friendship. The outlet also found that Crow purchased three properties from Thomas and his family for more than $133,000 in 2014 and paid tuition for Thomas’ grand-nephew at two private schools more than a decade ago.
The Senate Judiciary and Finance Committees have asked Crow for an accounting of the gifts, trips and travel arrangements he has given Thomas, though he has rebuffed their requests.
ProPublica also revealed that in 2008, Justice Samuel Alito flew aboard a private jet provided by hedge fund billionaire Paul Singer to Alaska for a luxury fishing trip. Singer later had ties to cases before the Supreme Court.
Neither Thomas nor Alito included the trips and financial dealings on their financial disclosure forms. Alito defended his conduct in an op-ed published by the Wall Street Journal, writing that he had no obligation to recuse himself from the cases involving Singer’s business, and did not have to report the travel and lodging because the jet constituted a “facility” exempt from reporting requirements. The justices “commonly interpreted” hospitality to include accommodations and transportation for social events that did not have to be reported as gifts, Alito argued.
In addition to revelations about Thomas and Alito, an Associated Press investigation found Justice Sonia Sotomayor’s court staff pushed public entities hosting her to purchase her books. She failed to recuse herself from cases involving her book publisher.
Durbin requested Chief Justice John Roberts testify before the Judiciary panel in May about the ethics rules governing the Supreme Court, though the chief justice declined the invitation. Roberts did, however, provide the committee with a “Statement of Ethics Principles and Practices” signed by the nine sitting justices, which he said they all adhere to.
The statement said the justices consult a “wide variety of authorities” to address potential ethical issues and may seek advice from their colleagues and the Supreme Court’s Legal Office.
Lower court judges have to abide by a code of conduct that advises judges to “avoid impropriety and the appearance of impropriety in all activities.” But the ethics standards, adopted by the Judicial Conference in 1973, do not cover Supreme Court justices.
Roberts said during a speech in May that there is more the high court can do to “adhere to the highest standards” of ethical conduct and said the justices “are continuing to look at the things we can do to give practical effect to that commitment.”
The renewed scrutiny of the Supreme Court and the ethics policies governing it come after public confidence in the nation’s highest court tanked in the wake of its June 2022 decision ending the constitutional right to abortion.
The decision, and an earlier leak of a draft opinion in the case, sparked a wave of protests, both outside the court and the homes of the conservative justices. A California man allegedly armed with a gun, knife and various tools was arrested outside Justice Brett Kavanaugh’s home last year and charged with attempted murder.
