Supreme Court Sidesteps Congress and Calls for Ethics Code

Chief Justice John Roberts opted for the status quo over conciliation in declining a Senate invitation to testify about Supreme Court ethics.

Roberts’ letter Tuesday to Senate Judiciary Chair Dick Durbin (D-Ill.) cited separation of powers and judicial independence in refusing to appear before the committee. An accompanying “Statement on Ethics Principles and Practices” signed by all nine justices suggested a united front on the court, one that’s in favor of continuing to police itself.

“To my mind the chief justice’s letter underscored that the chief justice is pretty confident that no one’s going to call his bluff,” said Leah Litman, a University of Michigan Law School professor and co-host of “Strict Scrutiny,” a podcast on the Supreme Court.

“Nobody in the Senate and Congress is going to challenge him,” she said. “They don’t have the votes to do that and they don’t have the political will.”

Moreover, the accompanying statement signed by the justices indicates they’re satisfied with the status quo, despite new questions over Supreme Court ethics and pressure from Democrats for a formal code of conduct.

The court is saying “this is how the process works, and it’s working,” said Douglas Keith of the Brennan Center for Justice, a left-leaning public policy organization.

Principles and Practices

In an attempt to explain the court’s “approach to ethical matters,” the justices laid out five pages of “ethics principles and practices” that they said they all follow.

But Northwestern ethics professor Steven Lubet said there’s very little in the statement that’s different from what’s been said before.

“The commitments are not new,” Lubet said, noting that the first few paragraphs are seemingly lifted from Roberts’ 2011 year-end report.

In that report, Roberts said all the justices follow the ethics code applicable to lower court judges and therefore “the Court has had no reason to adopt the Code of Conduct as its definitive source of ethical guidance.”

What Lubet said is new is that this is an attempt to respond to public pressure, particularly in light of recent reporting by ProPublica that Justice Clarence Thomas failed to disclose lavish vacations and trips on a private jet that were paid for by Republican donor Harlan Crow.

The reporting was cited by Durbin in his request for the chief justice to testify at a hearing May 2.

Some court watchers say the statement attached to Roberts’ letter shows the justices are taking the ethical concerns that have been raised seriously.

“It should be noted there is clearly a concerted effort right now to try and delegitimize the court and delegitimize certain justices, and the chief is certainly aware of that,” said Jonathan Adler, a Case Western Reserve University School of Law professor.

“At the same time, some justices have done things that have made themselves easier targets than perhaps they needed to be,” he said.

Lubet agrees that the letter is “a concession to public opinion.” But Keith said it’s “sort of the least possible response.”

“The court is acknowledging that this conversation is happening out in the world,” he said, but “the letter says we will not participate in this conversation.”

Protecting Turf

University of Minnesota Law School professor Richard Painter said the letter appears to be an attempt from the justices to present a unified front. The justices have faced historically low public approval figures in recent months.

“They’re trying to protect their own turf,” Painter said. “It’s colleagues covering for colleagues.”

Retired Justice Stephen Breyer defended Thomas publicly last week, calling him a “man of integrity” while speaking at a circuit court conference in Boston.

None of the court’s current members have commented publicly on the controversy surrounding Thomas, but that doesn’t surprise Litman. She said there’s something uncomfortable about calling out a colleague for unethical or inappropriate behavior.

“It’s pretty difficult for a sitting justice to do that given that they rely on each others’ votes,” Litman said. “And that’s part of the reason why we can’t trust the justices to police each other because they have a vested interest in not ruffling each others’ feathers.”

Recipe for Abuse

Moreover, the response is unlikely to satisfy critics at this point, according to Lubet. Perhaps if the justices had taken this step earlier, before the public scrutiny intensified, it would have been sufficient, he said.

As early as 2005, Lubet urged the then-new Chief Justice Roberts to overhaul the court’s procedures for handling ethics questions. Now, “it looks like a half-measure,” Lubet said.

Keith went further saying the move was “strategically unwise.”

“If anything, it may only inflame critics,” he said. And it may encourage members of Congress that have so far been hesitant to impose ethical obligations on the court “to rethink their reluctance.”

Sens. Lisa Murkowski (R-Alaska) and Angus King (I-Maine) have introduced a bill that would force the court to adopt an ethics code within a year and appoint an official to review potential conflicts of interest and public complaints.

But Painter, who served as chief ethics lawyer for President George W. Bush and helped usher both Roberts and Justice Samuel Alito through the confirmation process, doesn’t think the court needs to adopt a new ethics code.

“What the real problem is, is there’s no mechanism for enforcing the rules we already have,” he said. “That’s what I see missing from the letter.”

Lifetime tenure combined with no accountability, Painter said, is a recipe for abuse of power.

“Who are they accountable to? Nobody,” he said. “That’s what we’re hearing from the chief justice.”