Democrats Demand Ethical Code for Supreme Court, Justices Point to US Constitution

Questions swirling over ethics at the Supreme Court now have one branch of government going after the other. 

Democrats on the Senate Judiciary Committee want to know why the high court isn’t bound by an ethics code of conduct. 

In the past month, reports involving two justices opened the door to these questions. 

A ProPublica investigation found a Republican billionaire has paid for luxury vacations for Associate Justice Clarence Thomas over the last two decades. The same man also bought real estate from Thomas in Georgia. Neither was disclosed.

Then, last week, Politico reported that Associate Justice Neil Gorsuch didn’t disclose a property he sold to the head of a law firm with multiple cases before the court. 

Democrats call these ethical violations and want legislation passed to hold justices accountable. 

“Because the court will not act, Congress must,” said Sen. Dick Durbin (D-IL) chair of the Senate Judiciary Committee.

During Tuesday’s hearing, Democrats pointed out that the Supreme Court is the only federal court without a formal structure of ethics. 

“Justices read the ethics rules in unique and eccentric ways, and when they’re caught out of bounds, they refuse to allow any investigation of the facts,” said Sen. Sheldon Whitehouse (D-RI).

While Republicans agree with the need for greater transparency from the high court, they accuse Democrats of attempting to de-legitimize the justices rather than bring about reform. 

“The danger isn’t that rogue justices are operating without ethics. It’s that Democrats aren’t winning every fight, and they find that reality intolerable,” said Sen. John Kennedy (R-LA). 

“If you want to talk about making the court a better Institution, I’ll be glad to work with you in that regard. If you want to talk about destroying the court, count me out,” said Sen. Lindsey Graham (R-SC). 

Chief Justice John Roberts declined an invitation to testify before the committee, citing concerns based on the U.S. Constitution about the separation of powers, suggesting it could threaten the independence of the judiciary. 

“The constitutional separation of powers means no branch of the federal government can dictate how another should govern itself,” Kennedy pointed out. 

“Answering legitimate questions from the people’s elected representatives is one of the checks and balances that helps preserve the separation of powers,” Durbin argued.

In response to the hearing, all nine justices released a joint statement explaining their commitment to ethics principles, while dismissing calls for oversight.

Still, Democrats have introduced several bills that would require the Supreme Court to adopt an ethical code, consequences for violating it, and recusal guidelines. 

Expert witnesses, however, disagree on whether Congress has the power to do so, given the Constitution deems the Judicial and Legislative branches as co-equal.

“It is the Supreme Court, not the Congress, that has the prerogative under our constitutional structure to decide whether or not to adopt a code of conduct that governs themselves,” said Thomas H. Dupree Jr., partner, and co-chair of the Appellate and Constitutional Law Practice Group, Gibson, Dunn & Crutcher. 

“For over 230 years, and for as long as the Supreme Court has existed, Congress has regulated vital aspects of its operation, including its ethical obligations,” said Amanda Frost, John A. Ewald Jr. Research Professor of Law at the University of Virginia School of Law.

It’s unlikely any of the proposed bills will make it through a divided Congress. But as one expert witness pointed out, even if a law did pass with bi-partisan support, Congress can’t compel the Supreme Court to abide by it. 

**Please sign up for CBN Newsletters and download the CBN News app to ensure you keep receiving the latest news.**