White flags at SCOTUS: Experts fear partisan defeat for ethics reform

Last week, Justice Samuel Alito faced an opportunity to show the court's evolving position on ethics standards. Members of Congress demanded that the George W. Bush appointee recuse from several cases after reports revealed right-wing flags at his house. 

Alito dismissed lawmakers’ suggestion that a “Stop the Steal” symbol flown outside his house following the Capitol riot would lead any reasonable person to question his impartiality on cases involving Jan. 6 convictions and Donald Trump’s presidential immunity. 

Individual justices, Chief Justice John Roberts said, must decide whether their participation in a ruling might seem improper. That personal decision can’t be appealed to any higher body. 

Ethics experts were cautiously optimistic when the justices signed on to an ethics code, but their initial reservations are now on full display. 

“There's no enforcement mechanism, and so what it means is that it has no teeth,” Cantor said of the justices’ code. “You can't have accountability … . The code will have no deterrent effect unless there is some measure of accountability.” 

The concern from court watchers is not necessarily that Alito wasn’t required to recuse from Jan. 6 cases but that the Bush appointee alone made the decision.

Rhode Island Senator Sheldon Whitehouse’s Supreme Court Ethics, Recusal and Transparency, or SCERT, Act, created a process for recusal motions and mandated that the court draft an enforceable ethics code in the public eye. 

“Instead of Alito himself being the judge and jury as to the validity of the recusal motion, that bill says that the other eight justices would decide on the recusal motion,” said Gabe Roth, executive director at Fix the Court. “So at least you'd have … a wall between the potential recuser and the one deciding whether or not there's bias.”

Congressional oversight

But Congress has been sluggish to rein in what many lawmakers have framed as ethical and partisan adventurism by the justices.

“In the past year or so we’ve seen, very clearly, the biggest judicial legitimacy crisis in United States history,” said Alex Aronson, executive director of judicial reform group Court Accountability. “In the face of that, Congress — the first branch, the people’s branch — has completely shirked its duty to protect the people from this assault on our freedoms and our democracy.”

Whitehouse’s SCERT Act only recently regained momentum. The Senate Judiciary Committee passed the legislation, but it has languished on the Senate floor for nearly a year. 

Alito’s flag controversy returned the bill to the fore, with Senate Majority Leader Chuck Schumer saying passing the measure was a priority for Democrats. Schumer told Courthouse News that he and Durbin were “discussing the best ways to move forward” on the legislation, but lawmakers have yet to say when a vote could take place.

Durbin said the Senate must step in to address the ethics crisis that has engulfed the court, but experts see a disconnect between the Judiciary Committee chair’s statements and actions. 

“In the face of these scandals, Durbin has advanced about as tepid an oversight process as humanly possible,” said Aronson.

The Judiciary Committee earlier this year issued a subpoena to Federalist Society founder Leonard Leo, a conservative legal activist who ostensibly lavished Alito and Justice Clarence Thomas with high-dollar gifts that went unreported by the jurists. Republicans stormed off the panel as it met to vote on the subpoena. Leo declared the legal summons invalid and said he will not comply.

Durbin has been largely silent on whether he plans to take further action on Leo’s obstruction and has walked back subpoena threats for other benefactors, including conservative real estate magnates Harlan Crow and Robin Arkley.

Tradition or reform

Aronson suggested that Durbin is more interested in preserving Senate traditions and the little bipartisan collegiality remaining on the panel than in taking decisive action to curb ethical lapses at the high court.

The Illinois Democrat has expressed an affinity for longstanding bipartisan traditions such as blue slips for district court nominees — often seen as an avenue for the minority party to have a say in judicial appointments. Durbin has gone so far as to suggest reforming the blue slips process for appellate nominees, a norm abandoned under the previous Republican majority. 

But by prioritizing Senate tradition over forceful oversight of the Supreme Court, Aronson argued, Durbin is “misleading” the American public about the scale and urgency of the crisis and failing to inform them of the tools available to mitigate it.

Republicans are further hampering efforts at ethics reform. GOP lawmakers accused their colleagues of abusing the constitutional separation of powers and argued that Democrats are unfairly targeting the court’s conservative majority as retribution for rulings they dislike.

Ethics experts disagree, tracing legislative control over the judicial branch to the founding era. Aronson said lawmakers have clear authority to push back on what he called an extremist Supreme Court, with the SCERT Act taking a step in the right direction. 

“Although the provisions in SCERT are broadly popular with the American people, it has little chance of passing the Senate,” said Aronson, who previously worked for Whitehouse, “because Republicans have made clear they will do anything to protect their political allies at the court.”

The election year could further strain lawmakers’ political capital on ethics reform. Carl Tobias, chair of the University of Richmond School of Law, said some lawmakers could defect on ethics legislation. Vulnerable Democrats like Nevada Senator Catherine Cortez Masto have already broken with their colleagues on other judicial issues.

“I think that, given the partisan nature of where things are — and how close the Senate and presidential races may be — I don’t know that Democrats are going to have the stomach to fight on those issues,” said Tobias.

Durbin is likely reluctant to risk the cooperation of Judiciary Committee Republicans, such as South Carolina Senator Lindsey Graham, on issues like judicial nominees, Tobias explained. Graham’s cooperation has “been pivotal to Biden’s success” on nominees, he said, adding that he has been “helpful with red state senators, especially when it comes down to the wire.” 

But the South Carolina Republican has expressed strong opposition to Democrats’ Supreme Court probe and especially their move to subpoena Leo. Graham has previously suggested that he would stop backing White House judicial nominees in retaliation for the legal summons.

“Some of it may be bluster, and he doesn’t always follow through,” Tobias said, “but Durbin has drawn back on the subpoenas, especially for Leonard Leo.”

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