None of the nine justices will be in attendance.
Chief Justice John G. Roberts Jr. last week turned down an invitation to testify from Sen. Richard J. Durbin (D-Ill.), the committee chairman, instead providing a nonbinding “Statement on Ethics Principles and Practices” signed by all nine justices. Roberts suggested his presence at the hearing would threaten the constitutional separation of powers and noted that chief justices have attended such hearings only rarely, and only to address “mundane” topics.
Democrats criticized the memo as an insufficient, recycled statement in response to growing ethics concerns and sinking levels of public confidence in the high court. Leading Republican lawmakers, however, have dismissed the recent scrutiny of the justices as an effort to undermine the conservative supermajority that has quickly moved the court to the right.
Federal ethics law requires top officials from all three branches of government, including Supreme Court justices, to file annual financial disclosure forms listing outside income and investments. Lower court judges are also bound by a separate judicial code of conduct that requires judges to avoid “the appearance of impropriety in all activities” and includes a process to investigate allegations of misconduct.
The nine justices do not have such a code, though court transparency advocates and some lawmakers have long pressured the high court to adopt one. The justices have discussed but failed to reach consensus on a binding policy, The Washington Post reported earlier this year, despite talks dating to at least 2019.
The recent attention to reported ethical lapses, declining public opinion and the justices’ refusal to act has set up a potential clash between Congress and the high court.
“It is not simply a question of holding a hearing,” said Russell Feingold, the former Democratic senator from Wisconsin who served on the Judiciary Committee and is now president of the American Constitution Society. “It cannot be a one-and-done kind of thing. This is far too important.”
“I’d like to see if there’s some recognition on the part of the minority party on the committee that this is wrong, and that this needs to be addressed, regardless of your political party,” Feingold said of Tuesday’s hearing, referring to the panel’s Republican members.
Several ethics experts and former federal judges are expected to testify at the hearing, which was scheduled after media reports about free luxury vacations and private jet travel that Justice Clarence Thomas accepted for more than two decades, but did not disclose, from his friend, the Republican donor and businessman Harlan Crow.
Thomas also did not report real estate deals funded by Crow.
Separately, liberals and conservatives have debated whether Justice Neil M. Gorsuch should have disclosed that the chairman of a major law firm in 2017 bought a Colorado property in which the justice held an interest.
Tribe, a constitutional law professor emeritus at Harvard, said in a letter made public Tuesday that Congress “should not be intimidated by the power and prestige of the justices, whose position of privilege — as they pass final judgment on the most contentious issues of the day from the comfort of the Marble Palace they occupy — ought to be its own reward.”
Just because the Constitution creates “one supreme court,” he wrote, it does not follow that it is immune from oversight by the other branches. Tribe said it is “beyond doubt that Congress has ample affirmative authority, delegated by the Constitution itself, to enact binding laws governing the non-judicial conduct of Supreme Court Justices just as it has authority to enact such laws governing the non-judicial conduct of lower federal court judges.”
Even as lawmakers have condemned the omissions in the justices’ financial reports and called for new rules, the closely divided Senate does not appear to have the votes to pass legislation that would impose changes.
Sen. Angus King (I-Maine) and Lisa Murkowski (R-Alaska) introduced legislation last week that would force the Supreme Court to create a binding code of conduct and appoint an ethics officer to oversee it within a year. A separate bill proposed by Sen. Sheldon Whitehouse (D-R.I.) would require the justices to adopt and follow an ethics code, impose standards for disclosing travel and gifts in line with rules for members of Congress, and create an investigative board to review complaints against justices.
While both Luttig, a conservative, and Tribe, a liberal, said Congress can require a code of conduct for the justices’ nonjudicial activity, they agreed that Congress does not have the power to require the court to prescribe such standards for itself. They suggested the bills proposed by Whitehouse, King and Murkowski are problematic because they direct a federal court to take on a lawmaking role.
“There should never come the day when the Congress of the United States is obligated to enact laws prescribing the ethical standards applicable to the non-judicial conduct and activities of the Supreme Court of the United States, even though it indisputably has the power under the Constitution to do so, but paradoxically, does not have the power to require the Court to prescribe such standards for itself,” Luttig wrote in his letter to Congress.
Among those scheduled to testify Tuesday is Michael Mukasey, who served as attorney general under President George W. Bush and also served as a federal judge. He said in prepared testimony that it is up to the justices — not Congress — to decide whether to adopt a formal code of conduct.
“A law compelling the Court to adopt such a code, or purporting to impose one legislatively, would violate the principle of separation of powers, and would also be unworkable inasmuch as there is no authority other than the Justices themselves to apply such a code,” Mukasey wrote.
Mukasey also defended the court’s integrity and the justices who have been the subject of scrutiny. He noted that Thomas has said he will be guided in the future by updated rules that clearly require judges and justices to report private jet travel — a category that some say was ambiguous in the previous version of the rules. The criticism of Gorsuch’s failure to disclose the identity of the buyer in his property transaction, Mukasey wrote, is “meritless,” in part because the buyer said he did not know that Gorsuch was the seller until an offer had been made.
“If the public has a mistaken impression that the integrity of the Court has been damaged, the fault for that lies with those who continue to level unfair criticism at the Court and its Justices,” he wrote. “It is impossible to escape the conclusion that the public is being asked to hallucinate misconduct so as to undermine the authority of Justices who issue rulings with which these critics disagree, and thus to undermine the authority of the rulings themselves.”
Theodoric Meyer contributed to this report.
