The House Judiciary Committee advanced a Supreme Court ethics bill Wednesday, as Democrats raised concerns about Justice Clarence Thomas and cases related to the House investigation into the Jan. 6, 2021, attack on the Capitol Building.
Backers argued the measure, passed on a 22-16 vote along party lines, would impose limits on the Supreme Court justices, such as new recusal standards for when a judge should not sit on a case because of a conflict.
The bill also would require the creation of a code of conduct for Supreme Court justices and a new code of conduct for all federal judges, among other provisions.
Democrats also pointed to Thomas’ participation in a decision that rejected President Donald Trump's legal effort to stop the release of White House records to the House panel investigating the Jan. 6 attack. Thomas was the lone dissenter in the case.
Committee Democrats say the case could have involved communications the justice’s wife, conservative activist Ginni Thomas, had with then-White House Chief of Staff Mark Meadows about efforts to overturn the results of the 2020 election.
Republicans objected repeatedly in a broad-ranging committee debate that invoked efforts from some Democratic lawmakers to add justices to the court, a draft Supreme Court opinion in an abortion rights case leaked last week and whether Congress can regulate another branch of government.
Committee Chair Rep. Jerrold Nadler, D-NY, said there was a “growing and persistent ethics crisis” at the Supreme Court. Nadler pointed to the fact that justices can receive gifts, expensive vacations and other compensation without disclosing it or facing consequences when they do not recuse themselves from a case where they have a conflict.
“Every member of Congress is subjected to a code of conduct, as is every other federal judge, every district judge, every circuit judge, even entry level employees in the executive branch are subject to more stringent ethics requirements than the Justices of the Supreme Court,” Nadler said.
Republicans, led by ranking member Rep. Jim Jordan of Ohio, cast the bill as an attack on a Supreme Court currently controlled by a 6-3 conservative majority.
“Don't let them fool you. This isn't about ethics, this is an insurance policy for them when things don't go their way, they want to have the tools at their disposal to make life hard for the justices,” Jordan said.
Republicans also argued that Democrats had targeted Ginni Thomas due to her conservative views, rather than any actions she took.
Nadler pushed back on that, saying the concern sprouted from Ginni Thomas’ personal involvement in the effort. Nadler cited recently publicized texts between Ginni Thomas and Meadows, where she advised him on efforts to prevent the certification of the 2020 election results.
“To be clear I do not expect Justice Thomas to recuse himself from cases because his spouse has a particular point of view,” Nadler said. “I expect him to recuse when he knows or even reasonably suspects his wife's communications appear in the records that President Trump sought to withhold from Congress.”
The bill also includes provisions aimed to create more transparency of who is behind amicus briefs filed at the court, and require the Supreme Court to set rules for disclosing gifts and income that justices and law clerks receive.
The bill would also increase recusal requirements for all federal judges. They would also have to recuse themselves when a party that supported their nomination or appointment or gave them a gift is before them in a case.
Several bills have been introduced in the Senate with similar language, including one from Sen. Sheldon Whitehouse, D-R.I., that was the subject of a hearing at the Senate Judiciary Committee last week.
Separately, Rep. Darrell Issa, R-Calif., tried to advance a bill that would give Supreme Court law enforcement the ability to provide protective details for justices and their families around the clock, but Nadler blocked the effort. The Senate passed identical legislation by voice vote on Monday.
Issa argued the recent peaceful protests outside of Supreme Court justices’ houses in the past week constituted a threat to their safety.
Protestors targeted conservative members of the court for protest after a leaked draft majority opinion indicated there were enough votes in a case about a Mississippi law to overturn the 1973 Roe v. Wade decision that first established a right to abortion.
“Because of the imminent threat to our Supreme Court justices by potentially private parties who have been intimidating and protesting in an inappropriate manner and endanger the justice's ability to make an independent decision,” Issa said.
Rep. Mike Johnson, R-La., offered an amendment to require that any Supreme Court employee who leaks a draft opinion or judicial communications could be fired. The committee rejected the amendment on a 10-19 vote.
“If somebody leaks an opinion and does this kind of damage that they ought to at least be terminated from their job,” Johnson said.
Rep. Hank Johnson, D-Ga., the sponsor of the main bill, argued the Supreme Court could punish a leak with ethics rules adopted under the bill. And he pointed out that without the bill, a justice would not face consequences if they were the source of the leak.
“If it was done or directed to be done by a member of the court, including a conservative member, that justice would likely face no consequences,” Hank Johnson said.
The committee rejected a similar amendment from Rep. Dan Bishop, R-N.C., on a 12-22 vote. Bishop also offered separate amendments to the bill that would remove disclosure requirements for filers of amicus briefs and add a condition that the FBI investigate the publication of justices’ home addresses on the internet in the last week. All Republican amendments were rejected by the committee.
Several Republicans, including Arizona Republican Rep. Andy Biggs, said the bill created separation of powers concerns by trying to regulate the Supreme Court. Other federal courts, Biggs said, are created by statute and within Congress’ power to regulate, but the Constitution only provides impeachment as a check on the court.
“How are you going to enforce this? I don’t think it is enforceable,” Biggs said.