Senate Democrats are facing intensifying pressure from the left for inquiries into ethical questions at the Supreme Court, but they say their options are limited given the court’s independent status and Republican opposition.
Advocacy groups and progressives are stepping up their calls for Senate Democrats to be more aggressive after Chief Justice John G. Roberts Jr. rebuffed a plea to require Justice Samuel A. Alito Jr. to recuse himself from pending cases on the Jan. 6 assault on the Capitol and Donald J. Trump’s immunity for any actions leading up to it.
Top Democrats on the Judiciary Committee called on Justice Alito to recuse himself from those cases following reports that two flags associated with the “Stop the Steal” movement were flown outside his residences. The justice said his wife was responsible for the flags and refused to step away from the cases.
Earlier this week, a coalition of liberal groups and House Democrats urged the Senate to open an investigation into Justice Alito’s actions, with activists arguing that the Senate needed to stop behaving as if it were powerless.
Representatives Jamie Raskin of Maryland and Alexandria Ocasio-Cortez of New York, the top two Democrats on the Oversight Committee, have scheduled a round table on the issue for next Tuesday. It is set to explore a range of controversies surrounding the court, including unreported gifts and travel provided the justices, and their impact on the court’s agenda.
“The whole country is caught in a supreme ethics crisis,” Mr. Raskin said in a statement. “Our democracy, voting rights, and fundamental rights are on the line, and everything we have fought for is in danger because of this runaway court.”
Senate Democrats have struggled with how to respond to ethics controversies ensnaring the court. They have cited the refusal of members of the court to engage with them and fierce opposition from Republicans who portray the Democratic effort as a partisan one designed to undermine the credibility of a court dominated by conservatives.
“Keep in mind it’s a separate branch of government and has its own authority,” said Senator Richard J. Durbin of Illinois, the No. 2 Senate Democrat and chairman of the Judiciary Committee. “There are precedents as to what we can and cannot do.”
He added that independent news reporting and the work of the committee have given the public a “clear understanding of some of the unethical conduct of several justices.”
After a heated session last November, the Judiciary Committee, on a sharp party line vote, approved subpoenas for two conservative benefactors of the court to try to compel testimony about their travel with and influence on the justices. But the committee has not moved forward with them.
Democrats fear that the failure to round up even a majority of senators to enforce subpoenas targeting the court or Justice Alito himself — let alone the 60 votes needed to overcome procedural objections — would put Democrats in an even weaker position and undermine the Senate’s overall subpoena power.
“The people who say ‘subpoena him’ aren’t even reading the rules of the Senate,” Mr. Durbin said. “You need 60 votes, period. 60 votes.”
Democrats also worry that escalating the conflict with the court could lead Republicans to cease all cooperation when it comes to the Democratic drive to match or better the Trump administration’s confirmation of 234 federal judges in four years. They need to seat about three dozen more to exceed that threshold, and Republicans could put that goal in jeopardy if they chose to retaliate.
Earlier this week, Senator Mitch McConnell, the Kentucky Republican and minority leader, accused Democrats of potentially unethical conduct for lobbying the chief justice to force Justice Alito to recuse himself or face some kind of sanction.
“This goes beyond the standard disgraceful bullying my Democratic colleagues have perfected,” he said. “Recusal is the judicial act. These senators are telling the chief justice privately to change the course of pending litigation.”
Despite the procedural obstacles, progressive judicial activists said the situation is dire enough that Democrats need to consider some norm-busting behavior to force the Senate to confront the ethical issues at the court and hold justices accountable.
“We’re facing the biggest judicial corruption crisis in our nation’s history, and the Senate judiciary chair is acting like there’s nothing he can do about it,” said Alex Aronson, executive director of Court Accountability and a former Senate Democratic legal counsel. “Durbin can subpoena these justices, forcing tough floor votes to enforce the subpoenas or initiating criminal referrals of defiant targets.”
Democrats are a long way from those actions, though Senator Chuck Schumer, Democrat of New York and the majority leader, said he has been discussing with Mr. Durbin and others “the best way to move forward.” One option seems to be trying to force a floor vote on a Supreme Court ethics and recusal bill by Senator Sheldon Whitehouse, Democrat of Rhode Island, though that approach is unlikely to mollify critics or overcome Republican opposition.
Some Democrats say they understand the frustration of the left.
“We’re not doing enough,” said Senator Peter Welch, Democrat of Vermont and a member of the Judiciary Committee. “The question is not do we want to do more. The question is can we do more when we have united Republican opposition? That’s the practical challenge.”
Despite the criticism, Mr. Whitehouse, who has for years pressed the case that conservatives on the court have been co-opted, said Democrats are making progress, building support for legislation to overhaul the court, focusing public scrutiny on it and moving ahead with an inquiry in the Finance Committee, which is reviewing the tax implications of gifts to justices.
“My approach has been slow, steady and persistent,” Mr. Whitehouse said. “And we’re gaining quite a lot of ground.”
He noted that the upcoming rulings pertaining to Jan. 6 and presidential immunity for Mr. Trump could potentially build even more support for the Democratic cause.
“That decision really brings a conflict of interest to life,” Mr. Whitehouse said. “At the moment it is somewhat theoretical. I’m flying a MAGA battle flag over my house but I blame it on my wife. What’s the impact?”
“Well,” he said, “the impact comes when you make a decision.”
