If a showdown over Supreme Court ethics is coming, the best thing the justices might have going for them is a Congress divided over whether to try to force change on an independent branch of government.
Chief Justice John G. Roberts Jr.’s “respectful” rejection of an invitation to testify before a Senate committee, and a recycled statement of ethical guidelines from all nine justices, drew condemnation Wednesday from government watchdog groups and many Democratic members of Congress.
But the Senate’s top Republicans staunchly defend the court, and neither the White House nor some key Democrats in Congress seem eager to push past against the court’s self-oversight.
It all could lead to an uncomfortable deadlock. The legislative branch lacks the votes to force change. The court is unwilling — for now — to embrace reforms that might reduce the attacks on its credibility and legitimacy.
Roberts’s refusal to appear before the Senate Judiciary Committee — or engage with their calls for an ethics code specific to the Supreme Court — angered many Democrats, who accused the chief justice of having a blind spot when it comes to the public’s declining approval ratings for the court.
Sen. Sheldon Whitehouse (D-R.I.) said he’s “completely dissatisfied” with Roberts’s “mysterious statement.”
“It included zero process or method for making any of these determinations,” Whitehouse said. “It leads us in the exact same place that got them in trouble, which is: no ref, no rules.”
Sen. Chris Murphy (D-Conn.) said the letter Roberts sent to the committee Tuesday evening deepened his concerns.
“John Roberts is a smart guy. I think he does think about the legitimacy of the court and so his blind spot to what’s happening and the impact on the court of these disclosures is really worrying for me,” Murphy said.
Sen. Angus King (I-Maine) and Sen. Lisa Murkowski (R-Alaska) introduced legislation on Wednesday to force the Supreme Court to specify a code of conduct and appoint an official to oversee it within a year.
“I don’t understand why it’s so hard for them to say, ‘we will follow the federal judicial canon of ethics’” that apply to all other federal judges, King told reporters.
But King also said he has not attracted more Republican senators to sign on, and Senate Minority Leader Mitch McConnell (R-Ky.) took to the Senate floor to throw cold water on the idea that Congress should play a role in the court’s business.
“Just yesterday, all nine justices explained in a statement their joint approach to maintaining their high ethical standards,” McConnell said. “Unlike the activists and elected Democrats trying to tear them down, the justices have proven their sobriety and their judicial temperament over their long and distinguished careers.”
Democrats were divided on the path forward. A few liberals pushed for a more confrontational approach that involves attempting to force Roberts or other justices to answer for what they say are ethical lapses on the part of some justices, But others appear wary of wading into a public battle with an independent branch of government.
Senate Judiciary Committee Chair Richard J. Durbin (D-Ill.) has said the committee would not push to subpoena Roberts — an authority that divides experts. And Sen. Peter Welch (D-Vt.), a committee member, said the justices themselves should act to restore public confidence.
“This is not a tug of war between the Judiciary Committee and the Supreme Court,” Welch said.
As the standoff continues, Congress may find that nothing unites the justices like a challenge to their independence from outside the Marble Palace.
From the senior justice, the embattled Clarence Thomas, to the court’s 10-month rookie, Ketanji Brown Jackson, all nine justices signed a statement about their existing approach to ethics that was sent to the judiciary committee Tuesday along with Roberts’s letter. The statement said that from recusals to investigations to speaking engagements, the court has to be seen as different from lower courts, where Congress’s intervention is more appropriate.
Lower court judges are bound by a judicial conduct code that requires judges to, among other things, “avoid impropriety and the appearance of impropriety in all activities.” There is a complaint process by which allegations against the judges can be investigated.
But the court’s statement issued Tuesday said that while they voluntarily comply with many of the same guidelines, the “Judicial Conference, which binds lower courts, does not supervise the Supreme Court.” Decisions on recusals, for instance, must be made by individual justices, rather than by an advisory group or other justices, the statement said.
The justices on Wednesday did not respond to requests to elaborate on the statement, which comes as public confidence in the high court has declined significantly.
Fewer than 4 in 10 Americans (37 percent) said they have a “great deal” or “quite a lot” of confidence in the Supreme Court, according to a NPR/PBS NewsHour/Marist poll released Wednesday. In 2018, 59 percent said they had faith in the court. More than 2 in 3 Americans (68 percent) said the justices, for whom the Constitution provides lifetime tenure, should have term limits, according to the poll.
On the Senate floor on Wednesday, McConnell criticized Democrats for meddling in what he characterized as the justices’ “internal matters.”
He expressed confidence in the court, and particularly two conservatives, Thomas and Justice Neil M. Gorsuch, who he said have been “subjected to a carousel of character assassination.”
McConnell cited Thomas and Gorsuch because of media reports this month revealing that Thomas had not disclosed in annual financial reports lavish vacations, private jet travel and real estate deals funded by Republican donor and Dallas businessman Harlan Crow. Separately, Politico reported this week that Gorsuch did not list in his disclosure report that the head of a major law firm was the buyer in 2017 of a Colorado property in which Gorsuch was a part owner.
President Biden, for his part, has been quick to criticize the court for decisions with which he disagrees, such as on gun control and abortion, but reluctant to weigh in on Supreme Court controversies, a stance that dates back to long before he took office.
During the 2019 Democratic presidential primaries, as other candidates were openly contemplating expanding the size of the Supreme Court, Biden declined to embrace such a move — keeping in line with his more moderate, institutionalist approach to governing. He often harks back to his years serving as the top Democrat on the Senate Judiciary Committee to showcase his understanding of the court.
Biden set up a White House commission to review the court and the various proposals for changing it. The commission but stopped short of calling for the court to grow in size or institute term limits. Biden signed legislation last year requiring federal judges and Supreme Court justices to promptly disclose any stock purchases or sales and put their financial disclosure reports online.
“We have not commented on Justice Thomas or — or will not be commenting on Justice Gorsuch,” White House press secretary Karine Jean-Pierre told reporters Tuesday. “I’m just going to leave it there and let the Supreme Court deal.”
Critics of the court were far less restrained. Josh Chafetz, a Georgetown University law professor, said the Supreme Court under Roberts’s leadership has shown “utter contempt for Congress.”
“They basically refuse to engage with Congress on any terms but their own,” he said. “Invoking judicial independence as some kind of talisman that gets them out of testifying or any kind of accountability to Congress is ridiculous.”
If Congress wanted to act more assertively, Chafetz said, lawmakers could exert their power over the court’s budget to express its displeasure by refusing to pay the salaries of law clerks or for air conditioning. “Congress has a lot of tools it can use to bring the judiciary to heel,” he said.
With Sen. Dianne Feinstein (D-Calif.) indefinitely absent from the judiciary committee for health reasons, the committee’s Democrats lack the votes to subpoena anyone, given unanimous Republican opposition to the idea. They also are relying on goodwill from some of their Republican colleagues to help push some judicial nominations through the evenly divided panel.
Durbin said the committee would not move to subpoena Roberts even if Feinstein were to return, nor would it call on Crow to testify.
But Sen. Christopher A. Coons (D-Del.) said the committee needs to take some action if Roberts continues to ignore their calls for change. “I think it’s important for us to engage in a constructive conversation with the federal judiciary,” Coons said. “But in the absence of any testimony, any movement, any engagement, we need to be willing to take this up ourselves.”
Toluse Olorunnipa, Emily Guskin and Tobi Raji contributed to this report