Legislation requiring the Supreme Court’s nine justices to adopt a binding code of ethics was adopted by the Senate Judiciary Committee on Thursday, but the proposal faces a slim chance of passing in the narrowly divided Senate, where Republicans have promised to torpedo the bill.
The panel voted 11-10 along party lines to move the legislation to the full Senate and struck down nearly all Republican amendments during the markup session.
Committee Democrats, who for years have urged the court to adopt ethics guidelines on its own, said Thursday’s bill is long overdue.
“It was 11 years ago, and a very different Supreme Court, when I first called on Chief Justice Roberts to adopt a binding code of conduct for all Supreme Court justices,” Sen. Richard J. Durbin (D-Ill.), the chairman of the Judiciary Committee, said in his opening remarks. The bill “would finally bring Supreme Court justices’s ethics requirement in line with virtually every other public servant in the federal government.”
Sen. Sheldon Whitehouse (D-R.I.), the chairman of the subcommittee that oversees the federal courts and the lead sponsor of the bill, said: “We are here because the highest court in the land has the lowest standards of ethics anywhere in the federal government, and justices have exhibited much improper behavior. This cannot go on. Defending this behavior defends the indefensible.”
In addition to mandating the creation of an ethics code specific to the nine justices, proposals in the ethics bill include requiring the Supreme Court to strengthen its recusal requirements, bringing the court’s hospitality and financial disclosure rules in line with those of Congress, setting transparency guidelines for amicus briefs filed at the court and allowing the public to submit ethics complaints against the justices.
But despite broad Democratic support, Whitehouse’s Supreme Court ethics bill appears to be doomed in the full Senate. Committee Republicans said during the meeting that they would vote against the bill if Senate Majority Leader Charles E. Schumer (D-N.Y.) brought it up for a floor vote.
“I can assure the American people this ill-conceived effort in the name of reforming the court will go nowhere in the United States Senate,” said Sen. Lindsey O. Graham (S.C.), the Judiciary Committee’s top Republican.
Meanwhile, Schumer, who is one of the bill’s 25 co-sponsors, has not committed to putting the bill on the Senate floor, and it is unclear whether all 48 Democratic senators as well as the three independents who caucus with Democrats would support the bill.
Thursday’s historic vote is the culmination of Whitehouse’s years-long effort to increase oversight of the Supreme Court. Whitehouse has long expressed concerns about the court’s lack of an ethics code and has argued that a web of right-wing, dark money groups, in large part led by judicial activist Leonard Leo, were orchestrating a detailed legal, political and public relations plan starting in the lower courts to bring conservative issues before the Supreme Court, which now has a strong conservative majority.
Calls to impose a formal code of conduct on the court — led by Whitehouse and other committee Democrats — grew after a spate of reporting detailing purported ethical misconduct among the justices.
The Supreme Court has been under increasing scrutiny since ProPublica revealed in April that Justice Clarence Thomas did not disclose decades of luxury vacations and private jet travel funded by Republican donor and Dallas businessman Harlan Crow. Since then, several outlets, including the Associated Press, the New York Times, Politico and The Washington Post, have revealed questionable actions by justices, including undisclosed property sales and travel and fishing trips paid for by others; court staffers urging libraries and universities to purchase books written by a justice; and the high court’s relationship with law schools and wealthy conservatives.
And on Thursday, The Post reported that Leo, who also is a longtime executive of the Federalist Society, helped finance Thomas’s 2016 counter-messaging public relations campaign after the release of an HBO film that recounted the sexual harassment allegations made by Anita Hill against the justice.
Despite these latest revelations, Republicans have been loath to force the court to adopt a code of conduct. During the hearing, they called Whitehouse’s ethics bill “partisan,” “dangerous” and “unserious.”
“What you’re trying to do is not improve the court — you’re trying to destroy it as it exists,” Graham said.
Republicans, including Sen. Charles E. Grassley (Iowa), also expressed concerns about judicial independence and separation of powers during the hearing.
Democrats dismissed the arguments.
“Remember, as we debate this, the court’s financial disclosure requirements are a law, passed by Congress,” Whitehouse said. “Its recusal requirements are a law, passed by Congress; and the body that implements financial disclosure and code of conduct issues is the Judicial Conference, a body created by Congress.”
“Please let’s not pretend Congress can’t make amendments to laws Congress has passed, or oversee agencies Congress has created,” he added.
Part of Democrats’ frustration comes from the court’s slow approach to adopting an enforceable code of ethics on its own.
The justices have discussed but not reached consensus on a binding policy, despite talks dating to at least 2019. Instead, they have opted to comply voluntarily with the ethics standards that govern federal judges, including recusals from cases in which they or close family members might have a financial interest.
In April, all nine justices, including Thomas, signed a “Statement on Ethics Principles and Practices” that outlined their existing approach to ethics. The statement was sent to the Judiciary Committee but did not include new proposals or guidelines.
Democrats, at that time, called the statement inadequate. Whitehouse’s bill is the first attempt by Democrats in recent years that has shown such potential to get the court to adopt a formal code of ethics.
Sen. Chris Van Hollen (D-Md.), who chairs the subcommittee that oversees the court’s budget, unsuccessfully tried to use Congress’s power of the purse to pressure the Supreme Court to adopt a code of conduct. His proposal would have withheld $10 million of funding from the court’s $110 million salaries-and-expenses account until Chief Justice John G. Roberts Jr. informed Congress that the justices had adopted an ethics code.
Van Hollen withdrew his amendment after Sen. Bill Hagerty (Tenn.), the subcommittee’s top Republican, called the proposal a “poison pill” during the markup session.