Supreme Court Chief Justice John Roberts was given ample warning by Senate Judiciary Committee Chair Dick Durbin last month: “take the lead and bring Supreme Court ethics in line with all other federal judges,” or Congress will intervene. That didn’t happen. Instead, Roberts and the court majority spent the last week of the session, in the words of Justice Elena Kagan, “violat[ing] the Constitution” by “exercis[ing] authority it does not have.”
Durbin blasted Roberts in particular and the court majority as a whole in a statement Thursday, announcing that the first order of business when the Senate resumes work next week will be hearings to advance legislation forcing ethics reform on the court. “‘God save the United States and this Honorable Court!’ These are the words spoken by the Marshal when she gavels the Supreme Court into session,” Durbin said. “But many questions remain at the end of the Court’s latest term regarding its reputation, credibility, and ‘honorable’ status.”
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Roberts has responded to Durbin’s outreach—including an invitation to to discuss ethics issues with the committee—with disdain. He declined the invitation by making it clear he considers a chief justice deigning to talk to what he believes is a lesser branch “exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.” Given that attitude: Bring on the legislation. “[T]he Senate Judiciary Committee will mark up Supreme Court ethics reform legislation when the Senate returns after the July 4th recess,” Durbin said Thursday. “An announcement on the timing of this vote will be made early next week.”
The legislation, courtesy of Rhode Island Sen. Sheldon Whitehouse, is ready to go. The Supreme Court Ethics, Recusal and Transparency Act, sponsored by Whitehouse in the Senate and Democratic Rep. Hank Johnson of Georgia in the House, “would create a much-needed process for investigating misconduct at the Court, strengthen recusal standards for judges and disclosure rules for special interests trying to influence the courts, improve disclosure of travel and hospitality for judges, and mandate creation of a binding code of ethics.”
Justices would have to adhere to the same disclosure standards for gifts, travel, and income as members of Congress. The law would require the court to post its ethics requirements on its public website, create an investigative board to review complaints about the justices, create a panel of randomly selected lower-ranking judges to review recusal requests, and require public reports on compliance with all the new rules. It sure doesn’t seem like too much to ask of the nine people who have lifetime jobs deciding life, death, and most things in between for all of us.
The court’s decisions in the last few terms, since Donald Trump and Senate Leader Mitch McConnell packed it with extremists, can’t be considered apart from the “ethical issues plaguing the Court” Durbin suggested in his statement, scandals which were surfacing “all while the Court handed down decisions that dismantled long standing precedents and the progress our country has made over generations.”
Tying these ethics issues to the partisan actions of the court is a shot across the bow to Roberts, and a reminder that Congress does have the constitutional authority to impose reforms, as Whitehouse pointed out earlier this year. “I’ll be the first one to concede, if there’s a case in the judicial branch of government, we in the Congress have nothing to say about it,” he said. “But in terms of administering how the internal ethics of the judicial branch are done—heck, the judicial conference which does that is a creation of Congress.”
Congress also controls the purse strings for the court, an explicit decision by the framers to limit the court’s independence vis-a-vis the legislative branch. Roberts is just going to have to get over the fact that the “supreme” part of his job is just describing the court’s role in the judiciary, not the rest of government.
The legislation is unlikely to pass in the Senate this session, not with such a slim Democratic majority and a Republican conference that is getting everything it wants from this court and has no problem with its alleged corruption. But pushing the legislation now keeps the court—and all of its overreach and unpopular decisions—front and center in the 2024 elections. That’s especially true for the Senate and the Republicans who constructed this rogue court.
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