27 April 23
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The chief justice’s latest trick to ward off oversight is the ploy of a royal, not a judge.
In an accompanying “Statement on Ethics Principles and Practices,” presumably released for the public, the chief justice laid out the web of laws and practices and guidelines used voluntarily by each justice to determine their individual ethics obligations. Perhaps he was attempting to clarify things, but instead the document illuminates the problem. These obligations and commitments are advisory, unenforceable, and subjective. In response to the widespread concern that no person should be a judge in their own cause, the court has confirmed that it shall continue to be the sole judge of that. (Meanwhile, it will enforce this principle against other courts—which is great, but also … come on!)
Put aside for a moment Politico’s new report that Justice Neil Gorsuch failed to disclose that he’d sold his valuable Colorado property to a prominent lawyer with multiple cases before the court only nine days after he was confirmed, or Bloomberg’s new revelations that Harlan Crow, Justice Clarence Thomas’ GOP-megadonor billionaire friend, also had business before the court, yet his lavish gifts to Thomas were not disclosed because the justice said Crow had no business before the court. Note also that Gorsuch’s failure to disclose has been defended on the grounds that the justice was not friends with the purchaser of his land, whereas Thomas’ failure to disclose Crow’s gifts has been defended on the grounds that the justice was close friends with him. Which “friend” rule wins? Who can possibly know.
The justices themselves are wholly responsible for this high-octane ethics quagmire, which now drags into its fourth week. Any sane institution that relies wholly on public approval, when faced with multiple irrefutable reports of distortions and deception, would respond with a plan to do better. It speaks volumes that the Imperial Court’s response is a promise to simply continue to do the same. Why? Because it thinks the other branches won’t do anything about it. As Ian Millhiser noted in Vox this week, the Constitution makes it extraordinarily difficult to remove a justice, or diminish the court’s power. The reason it is set up this way, believe it or not, is because the framers thought the judiciary would rise above the partisan fray. In practice, however, the Supreme Court has proven remarkably easy for one political party to capture. Its members are selected through a flagrantly political process. It is formed by political imperatives. And yet the court pretends—and demands we all pretend—that it’s magically purified of politics as soon as its justices are seated.
In reality, it’s just a monarchy tricked out as the least dangerous branch, with black robes instead of bejeweled crowns. Indeed, the implicit argument that justices are somehow entitled to live like kings is part of the current ethics problem. For their part, the justices insist that it must ever be thus, not realizing that the only question that matters is whether that willful blindness can be imposed upon the country by fiat. Chief Justice Roberts appears to believe it can.
Perhaps the most depressing part of Roberts’ refusal to appear before the Senate is his claim that such appearances should be “exceedingly rare.” (The chief justice himself testified before Congress on ethics reform before.) It seems the rule is that it’s only ever the court that will determine when it has an ethics problem. Correcting that is precisely why Sen. Durbin invited him to testify. The fact that the chief justice thinks it’s up to him to let us know when it thinks it’s having a legitimacy crisis? That’s why it’s having a legitimacy crisis.
In truth, Roberts probably realizes that the court’s current policy of complete self-policing is indefensible. That’s why he didn’t try to defend it in his letter. In place of a justification, he churned out a brief book report on the history of chief justices testifying before Congress, the upshot of which is: It’s unusual. Well, yeah. It’s also unusual for a justice to break the law by refusing to disclose lavish trips and land deals with a billionaire benefactor.
While we’re on the topic of unusual things emanating from the highest court in the land, we could also mention Justice Samuel Alito spewing partisan gripes and taking swipes at respected journalists for reporting honestly on the court. Add in Justice Amy Coney Barrett blaming the press for undermining respect for the court in a speech delivered at the Mitch McConnell Center. We could toss in the fact that Justice Brett Kavanaugh once told the Senate he was the target of a vast Democratic plot designed to exact “revenge on behalf of the Clintons” when the Senate was holding a hearing about his fitness to serve for life on an imperial court. But what’s the point? Recall that, in 1969, Justice Abe Fortas was driven off the court for a scandal so quaint it barely registers today: He got paid $15,000 to teach a seminar and also received, then returned, a retainer from a financier friend. In 2023, we learned that Gorsuch hid the identity of the ultra-connected lawyer who bought his property, and it’s barely a one-day news story.
It’s unusual for multiple justices to commit, in the span of a few weeks, the caliber of ethics infractions that pushed Fortas off the court. But while most justices of the Warren and Burger Courts learned the lessons of the Fortas ouster—that it was worth it to behave impeccably—the takeaway on Roberts’ watch seems to be that denial and blame-shifting will suffice to allay public anxiety.
Unusual times call for unusual measures. A frank explanation from the chief justice is pretty much the least Durbin could’ve asked for.
If there is any legal analysis in Roberts’ letter, it’s limited to four words: The chief justice has “separation of powers concerns” about being called to testify before the Senate. How interesting. The court often uses this “concern” to box in other branches, limiting their ability to enact or enforce laws that address pressing problems today. But it steadfastly rejects the idea that, by undoing the results of democratic lawmaking, the judiciary itself might violate the separation of powers. Roberts has now taken this exceptionalism to a stratospheric new level: The chief justice of the United States can simply invoke the phrase “separation of powers” as a talisman to ward off any efforts at oversight. No need for actual constitutional analysis; just take Roberts’ word for it that James Madison would have hated for him to answer the Senate’s questions.
The public, on the other hand, seems to think differently. Americans’ confidence in the Supreme Court is in free-fall. Despite Roberts’ brush off, Congress isn’t waiting for the justices to get their own house in order. Bills such as Sen. Chris Murphy’s Supreme Court Ethics Act and Sen. Sheldon Whitehouse’s Supreme Court Ethics, Recusal, and Transparency Act would finally impose actual rules on the justices’ conduct. In addition, Sens. Angus King (an independent) and Lisa Murkowski (a Republican) have just introduced the Senate’s first bipartisan bill to require the justices to write and adopt a formal code of conduct. There is a growing public appetite for new reforms and it’s not clear that hand-waving about inchoate separation of powers concerns will quell the storm. The same justices who feel harassed and exposed because reporters are combing through their undisclosed financial dealings right now could have solved this problem with candor and honest reporting of their financial dealings on the routine occasions on which they were asked. In the midst of the crisis, they eschew a commitment to candor to instead mutter something about the nature of checks and balances, with the proviso that they are susceptible to neither.
These are the ploys of emperors. Unquestioned, unlimited authority may befit a ruler who reigns by divine right. But the chief justice, like all government officials, ultimately draws his power from the people. He wields a gavel, not a scepter. And the Constitution grants him no overarching right to insulate his entire court from the kind of minimal accountability without which no democracy can thrive.
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