Supreme Court Chief Justice Roberts Refuses To Testify To Congress — Here’s How Lawmakers Are Still Trying To Force An Ethics Code

Topline

Supreme Court Chief Justice John Roberts rebuffed a request Tuesday to testify before the Senate Judiciary Committee about the court adopting an ethics code amid a series of controversies—leaving the issue up to lawmakers to handle as a new bipartisan bill set to be introduced Wednesday is likely the best chance at getting the issue through a divided Congress.

Supreme Court Justice Clarence Thomas (L) and Chief Justice John Roberts (R) pose for their official … [+] portrait on October 7, 2022 in Washington, DC.

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Key Facts

The Senate Judiciary Committee invited Roberts to testify at a hearing on May 2, but the chief justice said in a letter Tuesday that he would not participate, saying chief justices testifying before the court is “exceedingly rare” and attaching a statement from the justices saying they voluntarily subscribe to ethical principles, like disclosing conflicts of interest.

Supreme Court justices are controversially not bound by a code of ethics as lower court justices are, and Roberts was invited to testify amid a series of recent ethics issues at the court: Justice Clarence Thomas has come under widespread scrutiny for not disclosing hospitality a real estate deal from GOP megadonor Harlan Crow, and Politico reports Justice Neil Gorsuch also failed to disclose a real estate transaction with the head of a law firm who has business before the court.

Democratic Sens. Sheldon Whitehouse (D-R.I.) and Chris Murphy (D-Conn.) have introduced two bills that would force the Supreme Court to adopt a code of ethics—as well as subject them to stronger disclosure and recusal requirements, in Whitehouse’s bill—though neither have so far moved forward, as they face long odds of garnering enough Republican support to pass.

The Wall Street Journal reports Sens. Lisa Murkowski (R-Alaska) and Angus King (I-Maine) will introduce the first bipartisan bill on the issue Wednesday, which would require the court to create its own code of ethics and appoint an official tasked with enforcing the code, essentially allowing the court to police itself.

Since the proposal has some Republican backing and doesn’t go as far as other proposals, Murkowski and King told the Journal they’re hopeful it has a better chance of actually passing—though with 60 Senate votes needed to pass that chamber and a Republican-controlled House, its odds are still slim.

Sen. Chris Van Hollen (D-Md.), who oversees the subcommittee that controls the Supreme Court’s budget, also may use the budget process to force the court to adopt an ethics code in order to be able to access certain funding, the Washington Post first reported earlier in April.

What To Watch For

The Senate Judiciary Committee’s hearing on May 2 will move forward even without Roberts’ participation, which chair Sen. Dick Durbin (D-Ill.) said “will review common sense proposals to hold Supreme Court justices to, at minimum, the same ethical standards and baseline level of accountability” that lawmakers and lower court judges face. “Make no mistake: Supreme Court ethics reform must happen whether the Court participates in the process or not,” Durbin said in a statement.

Crucial Quote

“It’s pitiful that we’re having to introduce this bill—it’s pathetic that the Supreme Court hasn’t done this itself,” King told the Journal about his and Murkowski’s legislation.

Tangent

Roberts has also referred questions from lawmakers about Thomas’ failure to disclose his financial dealings with Crow to the Judicial Conference, which is the court’s policymaking body. Lawmakers had also already referred the allegations to the body, asking it to investigate and refer any potential wrongdoing to the Justice Department. Democrats have accused Thomas of violating the Ethics in Government Act, which carries a punishment of a year in prison or a fine if violated.

Chief Critic

Roberts’ statement refusing to testify before Congress is “nowhere near an appropriate response to the ethical failures of the current Court” and “demonstrat[es] a profound ineptitude to rise to the occasion,” Gabe Roth, head of court watchdog Fix the Court, said in a statement Tuesday. “Following weeks of scandal, Americans had been seeking some reassurance that nine of the most powerful people in the country understood their responsibility to act above board, avoid corrupting influences and be honest in their dealings and disclosures. No such comfort comes today.”

Key Background

The Supreme Court’s lack of an ethics code has become a growing controversy in recent months, as the 6-3 conservative court has faced a series of ethics issues. Thomas had already come under widespread scrutiny for his wife Ginni Thomas’ right-wing activism, including efforts to overturn the 2020 election, before ProPublica reported he had accepted significant luxury travel from Crow without disclosing it as federal law requires. A subsequent report then confirmed a series of 2014 real estate transactions in which Crow brought property from Thomas, including the house where the justice’s mother lives, without Thomas disclosing it. Other justices have also come under scrutiny for socializing and appearing with conservative officials and figures, among other controversies. The American Bar Association passed a resolution in February calling on the court to adopt a code of ethics, and more than two dozen legal ethics scholars previously wrote a letter in support of a code in March 2022. Justice Elena Kagan previously testified to Congress in 2019 that a code of ethics was “something that’s being thought very seriously about” and the Post previously reported the court has been actively discussing imposing one for at least four years, but still hasn’t been able to impose one or decided if they will.