Here Are The Recent Controversies Supreme Court Justices Have Been Caught Up In

Topline

The Senate Judiciary Committee will consider Tuesday the question of whether the Supreme Court should impose a binding code of ethics—at a hearing the court’s justices have declined to attend—as a string of recent ethical issues at the court have ramped up lawmakers’ efforts to institute reforms.

The U.S. Supreme Court building at dusk on Capitol Hill in Washington, Nov. 16, 2022.

Key Facts

The Senate committee will hold a hearing on Supreme Court ethics reform with a panel of legal experts, after committee chair Sen. Dick Durbin (D-Ill.) invited Chief Justice John Roberts to testify at the hearing and he declined.

Lawmakers have renewed their push for a binding ethics code—which the justices do not have, unlike lower federal judges—following ProPublica reports detailing Justice Clarence Thomas’ dealings with GOP megadonor Harlan Crow, whom Thomas has reportedly accepted gifts and luxury travel from for years without disclosing it as federal law requires.

Crow also purchased real estate in Savannah, Georgia, from Thomas in 2014—including the home where the justice’s mother reportedly still lives—ProPublica reported, which was also not disclosed as required.

Thomas has also drawn significant controversy over his wife Ginni Thomas’ right-wing activism, particularly as she supported efforts to overturn the 2020 election as Thomas was hearing cases on it, and the justice has been criticized for failing to recuse himself in a case concerning documents being turned over to the House January 6 Committee.

Justice Neil Gorsuch then came under fire as Politico reported he sold real estate to the head of a law firm with business before the court, in a 2017 transaction that took place days after Gorsuch was sworn in as a justice.

Roberts has also come under scrutiny in light of reports his wife earned more than $10 million in commissions as part of her work as a recruiter matching attorneys with law firms, some of which have had cases before the Supreme Court.

Conservative-leaning justices including Gorsuch and Justice Brett Kavanaugh have also raised eyebrows for attending events and socializing with right-wing politicians and figures, with Gorsuch appearing last year at a closed-press event for the Federalist Society alongside GOP politicians and Kavanaugh attending a holiday party hosted by the head of the Conservative Political Action Coalition (CPAC).

What To Watch For

Tuesday’s hearing will include testimony from legal experts, including lawyers and former judges and prosecutors invited by both Democratic and Republican senators on the committee. Lawmakers have introduced three bills so far that would impose ethics restrictions on the Supreme Court, including bills introduced by Democratic Sens. Sheldon Whitehouse (D-R.I.) and Chris Murphy (D-Conn.) and a more bipartisan bill sponsored by Sens. Lisa Murkowski (R-Alaska) and Angus King (I-Maine). The bills all face long odds of passing a divided Congress, given the GOP’s majority in the House and Democrats’ narrow majority in the Senate, though the Murkowski-King bill likely has the best chances of making it through.

Crucial Quote

“To whatever extent the Court does not subject itself to the highest possible professional and ethical standards—or only grudgingly does so—to an even greater extent does it depreciate not only its power to preserve, protect, and defend the institution of the Supreme Court, it also depreciates its power to preserve, protect, and defend the Constitution of the United States,” J. Michael Luttig, a retired federal judge known to be conservative-leaning, said in a statement submitted to lawmakers ahead of Tuesday’s hearing.

Surprising Fact

Luttig and legal expert Laurence Tribe said in statements to the committee that while they believe Congress has the authority to impose a code of ethics on the court, they took issue with bills—such as King and Murkowski’s—that force the Supreme Court to come up with its own code of ethics, believing that could raise legal issues with the separation of powers. That raises the possibility that the bipartisan bill could face legal challenges if it passes.

Chief Critic

The Supreme Court’s justices have defended their lack of a binding ethics code by maintaining they voluntarily follow the one for lower federal judges. In his statement declining the Senate Judiciary Committee’s call to testify, Roberts attached a “Statement of Ethics and Principles” signed by the nine justices, which said they voluntarily subscribe to ethical principles, like disclosing conflicts of interest.

Key Background

The Supreme Court’s lack of an ethics code has become a growing source of controversy in recent years, and Justice Elena Kagan testified to Congress in 2019 that the issue was “something that’s being thought very seriously about” at the court. The Washington Post reported in February the court has been actively discussing imposing a code of ethics for at least four years, but still hasn’t been able to impose one or decided if they will. The 6-3 conservative leaning court has seen its public approval rating plummet in recent years amid ethics controversies and as the public has viewed the court as becoming too political, adding to the scrutiny of the court and ramping up cries for justices to avoid conflicts of interest. Legal scholars and the American Bar Association have called for the court to impose a code of ethics, and Thomas’ controversies involving Crow and his wife’s political activism have also sparked calls for him to be impeached or resign.

Here Are The Recent Controversies Supreme Court Justices Have Been Caught Up In—As Senate Hears Case For Code Of Ethics