Rhode Island Sen. Sheldon Whitehouse and other Democrats plan to push for new ethical standards for the Supreme Court in the next two years, even as the Republican control of the House may make that more difficult.
The justices faced increased scrutiny from lawmakers and the public over the last year on several fronts. Congress passed a financial disclosure law in April to address federal judges who did not recuse from cases where they had a financial interest. A leak of a draft opinion to wipe out abortion rights in May prompted protective fencing around the court building and security around the homes of justices.
More recently, a report about another possible leak of a decision in 2014 led to a House hearing. And ethics experts questioned whether Justice Clarence Thomas should have recused himself from a case dealing with Trump administration records related to the Jan. 6 attack that likely included his wife’s communications with former White House Chief of Staff Mark Meadows.
Whitehouse, who has used his clout in the Senate to highlight ethics issues at the Supreme Court, said there is a real chance for bipartisan legislation on the Supreme Court’s ethics standards, like changes to gift and travel reporting rules in the coming Congress.
And he intends to use his post at the Senate Judiciary Committee to keep airing the perceived ethical shortfalls through hearings and published letters.
“The more we’re talking about it, the more it becomes clear that the justices have painted themselves into a completely untenable position. And they’re gonna have to do something to fix it,” Whitehouse said.
Members on both sides of the aisle have pointed to areas where they want to see changes, including for Chief Justice John G. Roberts Jr. to release a report on last year’s leak of the abortion decision to Politico.
Although tensions surrounding any legislation on the Supreme Court have been high, Judiciary Committee ranking member Sen. Lindsey Graham of South Carolina said he’d “possibly” support legislation on the court.
Whitehouse is expected to retain chairmanship of the Judiciary Committee’s panel on the courts, which he used in the last two years to hold hearings and write letters to the Supreme Court.
In November, Whitehouse and Rep. Hank Johnson, D-Ga., sent a letter to the Supreme Court that requested a formal probe of the alleged leak in the 2014 case, as well as testimony about the court’s process for that probe. The Supreme Court replied with a letter denying the leak.
“The more the Supreme Court says, the more it discloses that it has no real process for factual inquiry, no real process for reporting, no independence or transparency,” Whitehouse said. “That is not how real ethics works.”
Democrats pushed for the court to adopt a formal ethics code, recusal standards that require an explanation and greater gift and travel disclosures. The House Judiciary Committee approved a bill last year that included many of those provisions.
But Republicans balked at the measure, voted against it on party lines, and cast it as part of a broader Democratic effort to attack a court because they disagree with recent decisions.
Any bill would need the backing of the Republican-led House and likely need enough Senate Republicans to overcome any filibuster.
Rep. Darrell Issa, R-Calif., the likely incoming chair of the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet, rejected Democrats’ approach to the justices in that bill.
“I don’t think we’re going to get anywhere by berating them or implying that we are better,” Issa said.
That defensive posture came out during a House Judiciary Committee hearing in December that served as Democrats’ closing argument for reform.
Nominally the hearing centered on the latest leak allegation, from a New York Times story where Rev. Rob Schenck said he was part of a decades-long influence campaign at the court, which included being tipped off on the result of the 2014 case Hobby Lobby v. Burwell by Justice Samuel A. Alito Jr.
But Republicans spent much of the hearing criticizing Schenck’s credibility, as well as Democrats for ignoring the leak of a full draft opinion last year.
“They’ve yet to have a hearing on the real leak, and we’re having one on the fake leak?” Rep. Jim Jordan, R-Ohio, now the Judiciary Committee chairman, said.
Issa and other Republicans who have said they are open to legislation on the Supreme Court want a more conciliatory approach to another branch of the federal government.
Issa said he’s open to more disclosures of travel or gifts but that would require buy-in from Roberts.
“I think it’s a combination of the hard power of legislation and the soft power of actually meeting with the judges and saying, ‘Let’s agree to the problem,’” Issa said. “Once we agree to the problem, let’s see if we can agree to a mutual solution, some of which will be codified in law and some of which you codify in traditions that you enforce.”
Issa said the current system has been able to address some abuses of the court system, such as changes to patent cases in Texas, without congressional intervention.
That soft-glove approach has not satisfied Johnson, who pointed out that the court has had years of opportunity to act on its own to adopt an ethics code or new recusal standards.
“You know I would love for the Supreme Court itself to promulgate a code of conduct to apply to itself rather than the legislative branch coming forward with legislation requiring it but so far, that approach has not worked,” Johnson said.
Outside groups still want changes to the Supreme Court, and more than 100 organizations, including Alliance for Justice and Leadership Conference on Civil and Human Rights signed onto an open letter to senators last year calling for legislation.
“We urge you to take immediate action launching an investigation into these and other reports that call into question the ethical standards to which Supreme Court justices are held,” the letter said.
Some outside experts think that once Congress gets further from the latest controversies it will get easier to legislate around those issues.
Gabe Roth, executive director of Fix the Court, an advocacy group for judicial ethics, said the new Congress may bring with it some good-governance goodwill, even if it is in divided government.
“Everyone’s focused on ‘Oh, did Alito get this, did Alito do that,’ you know, who flew whom around,” Roth said. “But I think once we’re a little bit more removed from it, there’ll be an opportunity to sort of take a step back and look at it.”