The Democrat-controlled Senate Judiciary Committee narrowly approved a Democrat-backed Supreme Court ethics reform bill on July 20 on a party line 11–10 vote.
Republicans oppose the legislation, which they say is unconstitutional.
They have suggested that Democrats—many of whom want to pack the Supreme Court with liberal justices—only want to move against the Court because its six-member conservative-leaning majority has been handing down decisions they find objectionable.
Three of those six justices were appointed by then-President Donald Trump, a Republican.
Democrats have been demanding that the Supreme Court adopt a code of ethics after the revelation of several alleged ethical lapses committed by conservative members of the Court, particularly Justice Clarence Thomas and Justice Samuel Alito.
Democrats are angry that wealthy Republican donor Harlan Crow gave Justice Thomas luxurious vacations, tuition support for a grandnephew he raised, and purchased low-dollar real estate from the justice’s family.
Justice Thomas didn’t disclose the events, saying he was advised that it wasn’t required, but has vowed to disclose such events going forward.
Justice Alito has defended his decisions not to disclose a paid Alaska trip in 2008 and not to recuse himself from a court case in 2014 that was related to the person who paid for the transportation.
The justice said he did not mention the trip in a 2008 report because not disclosing it was the “standard practice” in cases like this.
Sen. Lindsey Graham (R-S.C.), the ranking member on the committee, said at the hearing that the bill was designed “to destroy a conservative Court … to rearrange the makeup of how the Court governs itself.”
“It’s an assault on the Court itself,” Mr. Graham added.
The bill is the proposed Supreme Court Ethics, Recusal, and Transparency Act (SCERT) of 2023 (S.359), which was introduced in February by Sen. Sheldon Whitehouse (D-R.I.), chairman of the committee’s Subcommittee on the Federal Courts, Oversight, Agency Action, and Federal Rights.
Whitehouse’s bill would direct the Supreme Court to issue a code of conduct governing its own members.
The bill would also create a system allowing members of the public to file complaints against justices for violating the code of conduct or for engaging “in conduct that undermines the integrity of the Supreme Court of the United States.”
A “judicial investigation panel” comprised of “five judges selected randomly from among the chief judge of each circuit of the United States” would investigate a complaint and report its findings to the Supreme Court, which would then dismiss the complaint, order disciplinary action, or make changes to the court’s rules or procedures.
The panel would have subpoena powers and the authority to conduct hearings and release public reports about its activities.
Rules requiring the disclosure of gifts, income, and reimbursements received by any justice or justice’s law clerk would be established. A litigant would also be allowed to file a motion to disqualify a justice from a case, which would be reviewed by a panel of judges.
The measure would compel a justice to recuse him or herself from a case when he or she knows that a party or its affiliate in a legal proceeding spent “substantial funds” in support of a justice’s confirmation by the Senate.
The duty to disqualify him or herself would also apply when a justice, his or her spouse, minor child, or a privately held entity owned by such a person received income, a gift, or reimbursement from a party or affiliate to a proceeding in a six-year period before the justice takes up the case.
The bill would also require greater disclosure by parties filing friend-of-the-court briefs, who seek to influence the court on specific cases.
The Supreme Court and the Judicial Conference of the United States, a body created by Congress, would be directed to prescribe rules forbidding the filing of any such briefs that would lead to the disqualification of a justice from a particular case.
Mr. Whitehouse said at the hearing that the Court “has been captured by special interests, much like a railroad commission in the 1890s might have been captured by railroad barons to decide things their way.”
In addition, “right-wing front groups” that have filed friend-of-the-court briefs “have a statistically staggering record of certain justices ruling their way,” he said.
“It is the only court in the country, perhaps the only court in the world, with no ethics process at all. Then came the news that six politically active right wing-billionaires have been paying household expenses, engaging in financial transactions, and providing massive secret gifts of travel and hospitality for at least two justices.”
“We are here because the highest court in the land has the lowest standard of ethics anywhere in the federal government. And justices have exhibited much improper behavior, not least in hapless efforts to excuse the misdeeds. This cannot go on. Defending this behavior defends the indefensible,” Mr. Whitehouse said.
Sen. Dianne Feinstein (D-Calif.) lauded the bill, saying it “will establish important ethical standards—if given a chance—for Supreme Court justices related to their financial disclosures and decisions whether to recuse from hearing a case.”
Sen. Chuck Grassley (R-Iowa), on the other hand, said the bill is “about harassing and intimidating the Supreme Court.”
“Over the past several years, the far Left has mounted an unprecedented assault against the Supreme Court. The far Left is unhappy with the court’s conservative majority and detest a handful of its decisions,” he said.
“The far-Left playbook is to attack the Court, cast doubt on the legitimacy of the institution, impugn the reputation of the justices, and attempt to dictate the rules and practices of a separate branch of government.”
Sen. Mike Lee (R-Utah) said Democrats are exaggerating any problems the Court may have.
The Court “does, in fact, have its own ethics rules that it supervises, that it oversees,” and there is a Judicial Conference that “can and does look into these things.”
Democrats claim those safeguards are “not good enough” and to them “it’s basically a post-apocalyptic hellhole over there from an ethical standard viewpoint.”
This is “objectively untrue” and “deliberately slanderous,” Mr. Lee said.
Mr. Graham said the bill “would fundamentally change the way the Court operates” and “fundamentally erode the power of the Supreme Court.”
The measure “would create a complaint body where anybody could file a complaint against the Court.”
“There’d be a massive effort by liberals throughout the country to disqualify conservatives in every major case,” Mr. Graham said.
A series of Republican amendments to the bill were rejected by the committee. Democrats said the amendments were not relevant to Supreme Court ethics, the subject of the legislation.
Mr. Lee offered an amendment to the bill that would create a new federal crime for leaking the work product of the court. Such an action would be punishable by a $10,000 fine and up to 10 years in prison.
The amendment was a response to the unprecedented leak last year of a draft majority opinion in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade.
The leak was followed by loud protests both at the Court and at conservative justices’ residences.
One man was arrested in connection with a plot to assassinate conservative Justice Brett Kavanaugh.
Republicans complained that U.S. Attorney General Merrick Garland refused to enforce a federal law banning picketing outside the homes of justices.
Saying there was a “very organized effort to intimidate the justices,” Mr. Graham offered an amendment that would have allowed the Supreme Court’s police force to investigate violations of the federal anti-picketing law.
“The system designed to protect justices at their homes failed,” he said.
Sen. John Cornyn (R-Texas) proposed an amendment that would have extended a right to carry firearms to federal judges that would apply regardless of state and local restrictions on gun-carrying.
Cornyn said the amendment was needed because of the verbal attacks on the court launched by Senate Majority Leader Chuck Schumer (D-N.Y.). He was referring to Mr. Schumer’s March 4, 2020, statement at a pro-abortion rights rally on the courthouse steps.
Mr. Schumer vowed unspecified retribution against conservative Justice Neil Gorsuch and Justice Brett Kavanaugh should they vote to uphold the law then under challenge, a Louisiana statute that required abortionists to have hospital admitting privileges close to where the procedure takes place.
“They’re taking away fundamental rights,” he said as the case was being argued inside. “I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind!”
“And you will pay the price! You won’t know what hit you if you go forward with these awful decisions,” Mr. Schumer said at the time.
The statement was referenced repeatedly throughout the hearing by Republicans.
Sen. Tom Cotton (R-Ark.) offered an amendment that would have required members of the media to publicly disclose a list of their outlet’s funders and swear not to disclose anything about the internal deliberations of the Court in order to receive Supreme Court media credentials.
Mr. Durbin said he opposed the amendment because it would “unduly restrict freedom of the press.”
Sen. Ted Cruz (R-Texas) proposed an amendment intended to prevent Democrat-led packing of the Court. The defeated amendment stated that the Supreme Court is composed of nine justices, which is the current number of seats on the court. The number is fixed by statute.
When the full Senate will take up the bill was unclear at press time.
The Supreme Court is in recess for the summer and is scheduled to release orders in ongoing cases on July 24, Aug. 21, and Sept. 8. Its new term will begin with oral arguments in October.
