My beef is not with the chief’s declining to appear before Durbin’s committee “on ways to restore confidence in the court’s ethical standards,” as Durbin phrased it.
I never expected that he’d turn up, or even send a proxy. Testimony by a chief justice is, as Roberts noted, “exceedingly rare,” and not on such contentious matters; as with a president, it raises separation of powers concerns.
But Roberts’s assertion that he “must respectfully decline your invitation” was anything but respectful. “In regard to the Court’s approach to ethics matters,” he wrote, “I attach a Statement of Ethics Principles and Practices to which all of the current Members of the Supreme Court subscribe.”
That’s it. No acknowledgment — in the letter or the statement — of the spate of recent news reports raising questions about justices’ acceptance of gifts and travel, or of lapses in disclosure. No indication that the court saw any need to tighten or improve its ethics rules. No hint that this was an issue with which the justices are grappling.
Instead, he appended a pallid recitation of “foundational ethical principles and practices.” As Durbin said in a statement, “I am surprised that the Chief Justice’s recounting of existing legal standards of ethics suggests current law is adequate and ignores the obvious.”
Four years ago, testifying before the House about the Supreme Court’s budget, Justice Elena Kagan said that Roberts “is studying the question of whether to have a code of judicial conduct that’s applicable only to the United States Supreme Court … it’s something that is being thought very seriously about.”
Since then: nothing. No action. No update.
— Reports about “Operation Higher Court,” an effort by an evangelical Christian group that gained astonishing access to conservative justices and, according to the New York Times, obtained advance information about the outcome of a case after having dinner with Justice Samuel A. Alito Jr. and his wife. (Alito said any suggestion that he or his wife had leaked information was “completely false.”)
— Justice Clarence Thomas’s decision not to recuse himself from cases involving the 2020 election and the Jan. 6, 2021, committee despite the fact that his wife, Ginni Thomas, was extensively involved in disputing the election results and was interviewed by the committee.
— Revelations that Thomas accepted extensive luxury travel and accommodations from Republican megadonor Harlan Crow and failed to disclose Crow’s purchase of a home Thomas partially owned, as required by federal law.
I recognize that it’s impossible to legislate good judgment, but it’s time — long past time — for the court, just like any other part of government, to be subject to a code of conduct, including an enforcement mechanism. When it comes to recusal, justices are already covered by a provision of federal law that requires them to step aside from cases in which their impartiality “might reasonably be questioned.” On other ethical matters, justices say they follow the Code of Judicial Conduct, which applies to lower court judges. But the justices are not bound by these rules, and there is no way — short of impeachment — to ensure accountability and assure the public that the justices are complying with ethical standards.
The American Bar Association in February urged the Supreme Court to take this step. “The absence of a clearly articulated, binding code of ethics … imperils the legitimacy of the Court,” an accompanying report said.
And this is why the court’s refusal to take this step is only hurting itself. Its approval rating stood at 40 percent in September, tied for the all-time low. Lacking sword or purse, the court’s power derives from its stature, and if that trust dissipates, so will the court’s authority. Roberts understands this, which is why his head-in-sand ethics stance is so puzzling and disappointing.
If the court won’t act on its own, it may be left with no choice. Durbin backs a proposal by Sen. Chris Murphy (D-Conn.) that would require the Judicial Conference of the United States, which supervises the lower federal courts, to create a code of conduct for the justices; the measure would also direct the court to appoint an ethics investigations counsel to examine potential violations. Sen. Sheldon Whitehouse (D-R.I.) has another measure that would require the court to adopt a code of conduct, set up a board of appellate chief judges to review complaints against justices, and strengthen financial disclosure requirements and recusal rules.
On Wednesday, the movement gained bipartisan support. Sen. Angus King of Maine, an independent who caucuses with Democrats, and Sen. Lisa Murkowski (R-Alaska) introduced a bill that directs the court to adopt a code of conduct and designate an individual to “process complaints” about misconduct.
“The significance of this is that two senators who have not historically been engaged in Supreme Court issues now consider this important enough to do a bill together,” Whitehouse said. “I think that sends a very important lesson to the court that it’s not just a handful of specialists on the Judiciary Committee who think things have gone awry over there.”
Maybe Roberts and colleagues figure that lifetime tenure and a Republican House will let them weather this storm. But King, no partisan hothead, had a pointed message for the chief. “I can’t believe that John G. Roberts Jr. wants his legacy to be the Dobbs decision and a catastrophic decline in public confidence in the Supreme Court.” Me neither, but that’s where this is heading.
