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Lawmakers Revive SCOTUS Ethics Debate
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Lawmakers Revive SCOTUS Ethics Debate

A report about Justice Clarence Thomas has Democrats pushing for new rules.

Sens. Richard Durbin Sen. Sheldon Whitehouse during aSenate Judiciary Committee hearing in 2022. (Tom Williams/CQ-Roll Call, Inc via Getty Images)

A ProPublica investigation into hospitality and gifts Supreme Court Justice Clarence Thomas received from a Texas billionaire has reignited congressional debate over ethics rules for the court.

Based on flight records, interviews with yacht staff, and other granular reporting, the story details a more than two-decade relationship between Thomas and Harlan Crow, a real estate magnate and Republican donor. (Disclosure: Harlan Crow is a minority investor in The Dispatch and a friend of the founders.)

Thomas has taken flights on Crow’s private jet, vacationed on his yacht, and traveled to Crow’s properties—but Thomas hasn’t revealed most of those trips in his financial disclosures, despite a 1978 law that requires justices and other public officials to disclose most gifts annually. Until last month, Thomas may have been able to argue the gifts and travel fell under a personal hospitality exemption to the disclosure law, but the Supreme Court has released new guidelines specifying free trips and air travel need to be disclosed.

“The ProPublica report is a call to action, and the Senate Judiciary Committee will act,” Senate Judiciary Committee Chairman Richard Durbin said Thursday.

For a decade, Democratic lawmakers have advocated stricter disclosure requirements and other new ethics rules for Supreme Court justices, but most Republicans have rejected such bills as partisan efforts to punish a 6-3 conservative court.

Supreme Court justices have lifetime tenure and face few accountability mechanisms. They are not subject to their own code of conduct, although Chief Justice John Roberts has said the justices consult a code of conduct that exists for federal judges below the Supreme Court level. Members of Congress, on the other hand, have strict limits on gifts they can accept—and some of them want to see similar rules for justices.

Legislation from Rhode Island Democratic Sen. Sheldon Whitehouse would force the Supreme Court to adopt more rigorous disclosure rules for gifts, travel, and income received by justices and law clerks and establish a process to receive and deliberate complaints. It also contains standards for when justices should recuse themselves from cases. If passed, parties with cases before the Supreme Court would have to disclose recent gifts, travel, and reimbursements they have given to any of the justices and reveal lobbying or money they spent promoting any justice’s confirmation to the court.

Whitehouse said earlier this week—before ProPublica published its story on Thomas—that he will demand Supreme Court ethics legislation be wrapped into must-pass government funding legislation later this year. In a divided Congress, spending bills may be one of a few opportunities for Democrats to push for their priorities. 

It’s not clear whether any Republicans will be willing to embrace Whitehouse’s plan. Most have resisted the prospect. During a hearing about Supreme Court ethics legislation last year, House Judiciary Committee Chairman Jim Jordan argued the Democratic effort is motivated by politics.

“There’s one place of power that the Democrats don’t control, and they can’t stand it,” he said at the time. “They can’t stand the fact that they don’t control the United States Supreme Court.”

An exception among Republicans has been Florida Rep. Matt Gaetz. “What? Because we put a black robe on somebody and give them a lifetime appointment, all of a sudden when they fail to enact their own ethics rules, we just allow that to occur?” he said last year. 

Another Democratic bill introduced by Rep. Hank Johnson and Sen. Chris Murphy would require the Supreme Court to appoint an ethics investigation counsel to enforce a new Supreme Court code of conduct. The court has had internal discussions for years about its own potential code of conduct, but as of this February the justices hadn’t agreed on a path forward.

Even if Democrats can’t win over enough Republicans to pass such legislation, they may bring it to the Senate floor to put members on the record. “We must either enact basic judicial ethics reform or at least have a floor vote to see who is blocking it,” Hawaii Sen. Brian Schatz said Thursday.

Others had stronger words for Thomas, with several calling for him to step down or be removed.

“This degree of corruption is shocking — almost cartoonish,” progressive Rep. Alexandria Ocasio-Cortez responded Thursday. “Thomas must be impeached.”

Of Note

Haley Wilt is a former associate editor for The Dispatch.