Do the Democrats have a coherent strategy to address the ethical rot oozing from the Republican-controlled Supreme Court? Do they have any strategy, coherent or discombobulated, at all? Do they want one? Or am I exposing my child-like naivete by expecting duly elected Democrats to have a discernible plan to address the ongoing corrupt-o-rama that is the Supreme Court of the United States?
I ask because I’m one of the people who pays attention to this stuff everyday. I consider it the most essential part of my job to explain to voters why the courts matter—a function Democratic Party leadership has basically failed to perform for the last 30 years. But I cannot tell you what the Democrats are doing right now. Clarence Thomas and Neil Gorsuch have both been out there treating financial disclosure documents like optional homework assignments instead of critical public responsibilities, but Democrats seem too preoccupied trying to run a real-life Weekend at Bernie’s scam with Diane Feinstein to do anything about it.
After the Thomas revelations broke, Senate Judiciary Committee Chairman Dick Durbin promised to hold a hearing on Supreme Court ethics. It’s a response so feckless I suspect Caligula’s horse, Incitatus, will be appointed to conduct questioning. Durbin set the date of the hearing for May 2 and invited—yes, invited, not subpoenaed—Chief Justice John Roberts to testify. Earlier this week, Roberts “respectfully” declined.
Roberts’s reasons for refusing to appear before Congress are, of course, self-serving gloop. In a letter to the Judiciary Committee, the chief justice cited “concerns” over what his appearance might mean for the separation of powers and judicial independence, as if explaining to the American people why their justices appear to be on the take is something frowned on by the Constitution. He further pointed out that chief justices don’t usually appear before Congress—which is true, but also exploits the nifty lawyer trick of redefining terms to help finesse an argument. In this case: SCOTUS justices have testified before Congress, including during Roberts’s own term, just not the chief.
Roberts closed his letter by issuing a nonbinding “Statement of Ethics Principles and Practices,” which all nine justices signed. This “statement” is a judicial “promise” to follow “foundational ethics principles,” but the astute reader will note that the justices stopped short of binding themselves to an actual code of ethics, including statutory penalties, should they fail to live up to their promises.
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I cannot emphasize enough how completely useless this “statement” is—not only as a guidepost for justices’ future conduct but also, and perhaps more important, as a source of accountability for their past infractions. A statement on ethics, signed in 2023, does nothing to address whether these people violated actual laws regarding financial disclosures over the course of their entire careers. Having a person accused of lying issue a statement saying “I will not lie” is such a waste of time that I bemoan the precious seconds of my life I’ve spent typing this sentence.
So much for Durbin’s hearings.
If Congress really wanted to hold justices accountable, the obvious solution would be to bring impeachment charges against them. Congress would investigate whether Justices Thomas and Gorsuch violated legal disclosure requirements (spoiler: Thomas did, and Gorsuch may have) and if so, remove them from the bench. That will never happen, though, because impeachment starts in the House (currently run by the kinds of people who think bribery is speech) and ends up in the Senate, where McConnell and company will circle wagons to defend the antidemocratic rule of their handpicked justices.
That leaves us with the option of Congress stepping in to pass legislation bringing these nine unelected, unaccountable law wizards to account for their ethical failures. Roberts might disagree with me on this, but I’m pretty sure the Constitution allows the legislative branch to pass legislation that binds all citizens, rulers and Nazi memorabilia collectors alike, under the law.
As it happens, Senators Angus King and Lisa Murkowski (two non-Democrats, by the way, leaving us to still wonder where the party supported by the majority of the country is on all this, though King does caucus with Democrats) introduced a bill on Wednesday that would require the Supreme Court to issue its own code of ethics within a year. The problem is that even this cautious attempt to use the Senate’s constitutional authority to regulate the court seems to vastly underestimate the scope of the issue.
The King-Murkowski bill would require the court to initiate its own investigations into potential violations—because, I guess, the Dobbs leak investigation is the kind of hilarious incompetence King and Murkowski would like to see on a rolling basis—and issue a yearly report. The bill contains no penalties for the justices if they violate their own ethical standards. That’s right: The Senate response to the Supreme Court’s utter failure to police itself is to ask the Supreme Court to police itself. It’s a joke—and Clarence and Ginni Thomas are laughing all the way to their next vacation.
If Congress were as eager to regulate the Supreme Court as the court is to regulate people’s uteruses, I bet they’d stop laughing. Congress could ban judicial graft: pass legislation that imposes ethical requirements on the court (as opposed to asking the court to invent some themselves) and legal penalties on justices who violate those standards. Once again Roberts would squeal like a child being told it’s their bedtime that Congress can’t pass legislation that touches the court, and impeachment is the only constitutionally allowable penalty for misbehaving justices. But I believe the court can be made to accept congressional imposition of an ethics code—if Congress is willing to use its biggest stick and cut the court’s funding if it refuses to comply.
Supreme Court justices may be able to live without their government salaries, what with their land deals, book deals, and whatever money they can launder through their spouses. But I bet they like having a courthouse, and law clerks, and taxpayer-funded security services. If Congress starts taking these perks away, I bet the court would suddenly see the constitutional virtue of adhering to some basic independent ethical oversight.
But all that would require Congress to have the will to act. Right now, ProPublica is more interested in conducting Supreme Court oversight than all of Congress, and that should be an embarrassment to Democrats as a staff, label, and crew.
If Congress would start treating the Supreme Court like it’s subject to laws, the Supreme Court might start acting like it is.
