Democrats reflect on Supreme Court ethics push, hanging in the balance as election approaches

WASHINGTON (CN) — Though Democrats in Congress have made strides over the past year in probing what they frame as a significant ethics gap at the Supreme Court, next month’s presidential and congressional elections could make — or break — legislative efforts to reform the high court, according to two lawmakers who have championed the issue.

Democrats have for months accused wealthy conservative figures and legal organizations of undertaking a deliberate campaign to influence Supreme Court justices and score political wins outside of the legislative process.

Lawmakers were spurred into action last spring, amid reports that Justice Clarence Thomas and Justice Samuel Alito had failed to disclose luxurious vacations, expensive gifts and other hospitality showered on them by wealthy benefactors, some of whom were involved in business that would later come before the court.

Further scrutiny on the justices not only unveiled a cascade of other ethical malfeasance but also predicated a raft of Democratic legislation aimed at, among other things, forcing the Supreme Court to adopt a binding code of ethics and setting term limits for members of the country’s highest court.

Perhaps predictably, efforts to clamp down on the justices have been met with consternation from Republicans, who accuse their colleagues of attempting to delegitimize the Supreme Court’s conservative majority.

“I think it’s politically motivated legal garbage,” South Carolina Senator Lindsey Graham, the top Republican on the Senate Judiciary Committee, told Courthouse News in April. “It’s not going to go anywhere.”

Graham and other GOP lawmakers have framed the Democrats’ ethics push as a veiled reaction to the high court’s recent string of conservative rulings.

But despite a closely divided Congress and staunch Republican opposition, Democrats have made some progress on the issue.

The Senate Judiciary Committee over the summer advanced the Supreme Court Ethics, Recusal and Transparency, or SCERT, Act, penned by Rhode Island Senator Sheldon Whitehouse. If made law, the bill would force the court to draft a binding ethics code and make it available for public comment. The measure would also stand up an independent review panel, composed of lower court judges, that could adjudicate ethics complaints against the justices.

Though the bill narrowly cleared the Judiciary Committee on a party line vote, it was blocked on the Senate floor by Republicans — and if Democrats were to bring the measure up again, GOP lawmakers would be likely to filibuster.

“Getting the ethics bill through committee was a very big deal,” Whitehouse said in an interview Wednesday.

Advancing the SCERT Act wasn’t the Senate’s only major progress on Supreme Court oversight, he added, pointing to an August report from the Seante Finance Committee which suggested that billionaire real estate mogul Harlan Crow could have violated tax law by classifying gifts given to Justice Thomas as business expenses.

Whitehouse also cited the U.S. Judicial Conference’s March 2023 decision to tighten the judiciary’s financial reporting rules to remove exemptions for “personal hospitality” in disclosures. These developments were “a pair of good wins,” he said.

In the Republican-controlled House, however, Supreme Court ethics legislation has largely been a political nonstarter despite earnest efforts from reform-minded Democrats.

“The House, under Republican leadership, is not interested in court reform at all,” Georgia Representative Hank Johnson said in an interview Friday.

Johnson, the Democratic ranking member on the House Judiciary Committee’s subpanel on federal courts, has introduced legislation that would implement 18-year term limits for Supreme Court justices and establish a system under which each president could appoint as many as two new jurists to the bench. The Georgia Democrat has also backed a bill that would add four new seats to the high court.

But House Republicans have refused to engage with him at all on any of these issues, Johnson said.

“There’s just simply been no interest by Republicans about any aspect of court reform — not even a binding code of conduct for justices like the one that every other federal court judge has to abide by,” he observed. “Instead, what we get is rhetoric that Democrats are somehow trying to hurt or destroy the independence of the court.”

Whitehouse, for his part, blamed Republican opposition to Supreme Court ethics reform on the same forces he said are responsible for influencing the justices.

“The billionaires that back the Republican Party, after decades of frustration, settled on a strategy to capture the Supreme Court, and they succeeded at it,” he said. “They have the power now, so they are not going to give this up, and they are going to tell the Republicans, who they fund, that they have to defend this at all costs. And so they will defend it at all costs.”

Johnson concurred. “Republicans have the Supreme Court that they have so invested in over the years,” he said. “This is the court that enables them to accomplish what they can’t do legislatively.”

Congressional Republicans have previously raged against Democratic efforts to squeeze information out of figures who lawmakers argue have been central to an effort to influence the Supreme Court. The Senate Judiciary Committee’s entire GOP contingent walked out of a meeting last year during which Democrats authorized a subpoena against Leonard Leo, cofounder of the conservative legal organization the Federalist Society.

Leo, who had been implicated in reports about undisclosed gifts to Justice Thomas and Justice Alito, has long refused to comply with the legal summons — and Republicans have argued the subpoena is unenforceable.

That staunch opposition from Republicans is unlikely to dissipate if former President Donald Trump is elected in November — or if the GOP maintains some governing authority in Congress.

There is “little likelihood” of progress on Supreme Court reform if Republicans control the House or Senate in January, Johnson said.

Whitehouse, meanwhile, was slightly more optimistic, pointing out that Democrats had managed to make some headway on the issue in a Senate where they control only a slim majority.

“I managed to get quite a lot done in the Senate, even without being the [Judiciary] committee chairman, even when we were in the minority,” he said. “This was by virtue of persistence.”

But a Democratic victory in November, the senator acknowledged, would allow the congressional push for ethics reform at the high court to advance by leaps and bounds.

Wresting control of the House from Republicans would be a particularly crucial win for the cause, Whitehouse said, because the lower chamber can mount a “formidable” investigation into the justices’ malfeasance and issue subpoenas for key figures without the fear of a Republican filibuster.

“Even if the Senate or the White House were lost — which I don’t expect — I would expect that the House would go forward and continue to investigate,” he said. “That could make a huge difference.”

Johnson said that under a Democratic majority the House would be “poised” to dive into the Supreme Court’s operations, though he didn’t specify exactly how such an investigation might take shape. House Minority Leader Hakeem Jeffries has already said he would support court reform efforts in the lower chamber, he added.

“It presents unique opportunities to bring meaningful reform to the Article III branch of government, while at the same time being careful to maintain the delicate system of checks and balances that makes our democracy work — because the Supreme Court has disrupted that,” the Georgia Democrat said.

And Democrats’ best-case scenario, a governing trifecta, could herald even more transformative action on court reform.

“I think we’d be looking at a serious ethics bill, a serious term limits bill, all of those things,” said Whitehouse.

The Biden administration and Vice President Kamala Harris have both expressed interest in legislative steps to rein in the Supreme Court. Biden in July came out in favor of term limits for the justices and backed a bill that would force the court to adopt a binding ethics code.

The court’s conservative majority, though, has largely been resistant to calls from lawmakers to self-regulate. Thomas ignored calls to recuse himself from cases related to the Jan. 6, 2021, Capitol riot despite reports that his wife was involved in efforts to overturn the results of the 2020 presidential election. Alito similarly did not step back from Jan. 6-related cases after reports emerged that a flag associated with the election denial movement flew above his Virginia home in the days after the riot. The jurist has blamed that display on his wife.

The Supreme Court, in an apparent response to questions about its members’ ethical conduct, released its own ethics code late last year, but critics have argued that it lacks an enforcement mechanism. Prior to that, Chief Justice John Roberts had long held that the justices could not be held to the same ethical standards as lower courts.

“I think the underlying point that has to be reckoned with here is that the position the Supreme Court takes with respect to its own immunity from scrutiny is completely untenable,” Whitehouse said Wednesday. “It’s almost nonsensical. The fact that these are the judges responsible for overseeing the proper implementation of the rule of law in our country — and they won’t even apply its most basic principles to themselves — is not a situation that can last.”

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