Supreme Court Chief Justice John Roberts has refused to talk to the Senate Judiciary Committee about the huge ethics problems swirling around Justice Clarence Thomas. Roberts not only declined committee chair Dick Durbin’s invitation to talk to the panel, he asserted there isn’t an ethics problem he needs to deal with.
Roberts said that a chief justice deigning to talk to what he clearly thinks is a lesser branch “is exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.” Instead of answering any of the issues raised by Durbin in his invitation, Roberts attached the court’s Statement of Ethics Principles and Practices, which he said “all of the current Members of the Supreme Court subscribe” to.
Oh yeah? Has Chief Justice Roberts himself been abiding by the court’s ethics statement, when he repeatedly refuses to recuse himself in cases where he could have a conflict of interest because of his wife’s work as one of the nation’s top legal talent headhunters? Many of the firms who use her services—and lawyers who she finds jobs for—end up arguing before the Supreme Court. Furthermore, was Roberts complying with that ethics memo when he reported that his spouse was merely a salaried employee of her current firm, rather than a partner who receives commissions from the firms she’s helping? Is he reporting household income from those commissions, or just Jane Roberts’ base salary?
Speaking of Supreme Court spouses, Justice Amy Coney Barrett’s husband heads up a law firm that expanded dramatically after her confirmation. His burgeoning firm boasts clients in “virtually every industry,” including “over 25 Fortune 500 companies and over 15 in the Fortune 100” on its website. Those companies surely have business before the court, but Barrett has yet to disclose any of that or to recuse herself from any cases connected to her husband’s firm. In fact, in her most recent disclosure, she went so far as to redact the name of her husband’s firm.
Then there’s Justice Neil Gorsuch’s very convenient real estate windfall, in which a property he co-owned sold just nine days after his confirmation, after having sat on the market for two years. The property sold to Brian Duffy, chief executive of Greenberg Traurig, a powerhouse law firm that has regular business before the Supreme Court. Gorsuch reported the proceeds of the sale in his federal disclosure forms, but somehow missed the box where he was supposed to report to whom he sold the property. Oops. It seems like one of the implied parts of that advisory on ethics for justices is to complete all the paperwork that proves you’re complying it.
There’s been no reporting about Justice Samuel Alito allegedly enhancing his lifestyle through his seat on the highest court. There have, however, been allegations that he leaked at least one decision to friends of his who happened to be funding one of the evangelical lobby’s challenges to the Affordable Care Act. Alito allegedly told his friends that they were on the winning side in Burwell v. Hobby Lobby, because he was writing the opinion.
The authority supposedly overseeing the justices’ adherence to the ethics agreement determined that was just fine, focusing on the part of the story where Alito happened to have some of these discussions over dinner with his friends: “Relevant rules balance preventing gifts that might undermine public confidence in the judiciary and allowing judges to maintain normal personal friendships.” So much for that.
Speaking of Alito and leaks, remember how the blockbuster decision overturning abortion rights was leaked to Politico a month before it was handed down? The purportedly independent investigation of that leak, which found no culprit, was conducted by a guy on the Supreme Court’s payroll; Michael Chertoff, who has a contract with the court for security consultations. Chertoff, a former Department of Homeland Security head, has a longstanding personal and professional relationship with John Roberts.
Then there’s the justice at the heart of this matter, Clarence Thomas. Where to even begin? Let’s start in 2011, when his failure to report his wife Ginni’s income from the various right-wing astroturf groups she was involved with made headlines. On top of his failure to report that income, Thomas refused to recuse himself from any of the cases those groups brought before the Supreme Court. He has similarly failed to recuse himself from any of the cases stemming from Donald Trump’s efforts to steal the 2020 election, an effort Ginni was smack dab in the middle of. Not only did Thomas refuse to recuse from one case the court has decided in regards to the 2020 election (whether Trump had to turn over documents to the Jan. 6 committee), but he was the sole vote in favor of Trump (and Ginni).
Finally (but definitely not conclusively), there are the latest reports from ProPublica of Thomas’ close friendship with Texas billionaire Harlan Crow, a big donor to Republicans and far-right dark money groups. There are the lavish—and unreported—gifts and holiday trips the Thomases enjoyed on Crow’s dime. There’s the real estate deal Thomas failed to disclose, a deal that has resulted in Thomas’s mother living rent-free in a renovated home thanks to Crow’s generosity.
Those reports were finally enough to shake Durbin into doing something rather than issuing stern statements. That something was his invitation to Roberts. Now that he’s been spurned, Durbin issued a slightly sterner statement, saying that “It is time for Congress to accept its responsibility to establish an enforceable code of ethics for the Supreme Court, the only agency of our government without it.” The committee will hold the hearing on May 2 anyway, to “review common sense proposals to hold Supreme Court justices to, at minimum, the same ethical standards and baseline level of accountability that bind the rest of the federal judiciary and the executive and legislative branches.”
He even added a mild rebuke to Roberts. “I am surprised that the Chief Justice’s recounting of existing legal standards of ethics suggests current law is adequate and ignores the obvious,” Durvin said, going on to cite the “actions of one Justice.” That unnamed justice is clearly the one who failed to disclose gifts and “trips on yachts and private jets,” and “the sale of properties he partly owned to a party with interests before the Supreme Court.”
Meanwhile, Sen. Ron Wyden’s Senate Finance Committee has initiated a look into the tax implications of those gifts. That examination is in the very beginning phases, consisting of a letter from Wyden to Crow asking for detailed information about the gifts, trips, and real estate deals, and whether Crow complied with tax law in reporting them. That’s a development to keep an eye on.
In the meantime, at least one Republican senator has realized that there’s a big problem on the court that implicates her party. Alaska Sen. Lisa Murkowski has joined with Maine’s independent Sen. Angus King on a proposal to make the court devise a code of conduct for itself. That’s a pretty ridiculous idea, given how far this court has gone to ignore its glaring ethics problems. But it is an indication that there’s real pressure on the Senate to do something.
Right now, that’s not going to mean oversight and a real code of behavior forced on the court. The Judiciary Committee can’t do that during Sen. Dianne Feinstein’s apparently unending absence, since it doesn’t have a seated majority. That’s even assuming Durbin has the stomach to take concrete action. But what Democrats, including Durbin, can do is keep up the drumbeat and raise some hell.
Voters gave Democrats a Senate majority in 2022 and it’s time to fully wield that power. Roberts’ arrogant and smug dismissal of the Senate gives Durbin and the rest of the team all the ammunition they need to do it.
Were billionaire's gifts to Thomas taxable? Sen. Wyden wants to know
Drip, drip, drip: The Supreme Court’s legitimacy is eroding by the day
The rot in the Supreme Court goes beyond Clarence and Ginni Thomas
The past week seems to have packed in a month’s worth of news. Markos and Kerry tackle it all, from Joe Biden’s big announcement to Tucker Carlson’s early retirement from Fox News.