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Taking The Reins

Don’t Look Now, but a Bipartisan Plan to Rein in the Supreme Court Has Arrived

Clarence Thomas’s news-making scandals have senators eager to rein in the high court. At least one Republican has signed on to the effort.

Erin Schaff/Getty Images

With Supreme Court justices under increasing scrutiny for a slew of potential ethics violations, efforts to require the nation’s highest judicial authority to adopt a formal code of conduct are gaining momentum in Congress. Although district and appellate court judges are bound by a code of ethics, Supreme Court justices are subject to no such standards, with no official process for investigating complaints absent impeachment.

A steady drumbeat of news reports has created the pressure to bring some measure of ethics reform to the high court. Earlier this month, ProPublica reported that Justice Clarence Thomas had attended lavish vacations hosted by billionaire Harlan Crow, spending time on Crow’s yacht and traveling in his private plane. ProPublica later reported that Crow had bought the house where Thomas’s mother currently resides. Politico reported this week that the chief executive of the influential law firm Greenberg Traurig bought property in Colorado co-owned by Supreme Court Justice Neil Gorsuch shortly after Gorsuch was confirmed to the court.

The most recent pitch for submitting the high court to ethical standards comes from a bipartisan duo of senators. Senator Angus King, an independent who caucuses with Democrats, and GOP Senator Lisa Murkowski on Wednesday introduced legislation requiring the Supreme Court to create its own code of conduct within one year of the law being enacted and to publish these regulations on its website to be accessible to the public. It would also mandate the court appoint an individual to handle any complaints of code violations, and require this person to publish a public annual report.

“Why is the Supreme Court the only court in the land that doesn’t have a judicial code of conduct? The executive branch has a code of conduct, and the legislative branch has one. Why wouldn’t the highest court in the world?” Murkowski said. The Alaska Republican told me that she had signed on to the proposal, which she said King has long been developing, because “his approach was good and sound and right up my alley.”

King and Murkowski are not the only senators looking to tighten ethics requirements for the Supreme Court. Senator Sheldon Whitehouse and Representative Hank Johnson introduced a measure in February also requiring the court to create and adopt a code of ethics, while also creating a panel of circuit court judges to review complaints. It would codify standards for when justices should recuse themselves from cases and require the court to follow the same minimum gift, travel, and income disclosure regulations as members of Congress.

Whitehouse told me that having multiple bills requiring the court implement a code of ethics showed that “concern about the behavior of the Supreme Court now extends well beyond members [of Congress] who are usually concerned about the Supreme Court.” Whitehouse said, “I think that’s an important signal to the court about the need for reform. And I think the more comprehensive the reform is, the better.”

Separately, Johnson and Senator Chris Murphy have introduced a bill requiring the creation of a code of conduct and directing the court to appoint an “Ethics Investigations Counsel” for investigating complaints. Unlike King and Murkowski’s bill, the measures from Whitehouse and Murphy do not have any Republican co-sponsors.

But Murphy was sanguine about the fact that a Republican has joined the larger effort, even if it wasn’t in support of his bill. “I think it’s great we now have bipartisan work in this space,” Murphy said about the bill that King and Murkowski have put forward. “I’m talking to Republican colleagues regularly, but I think we also need to put pressure on the court to take steps themselves.”

Despite Murkowski’s support, it’s unclear whether the measure proposed by her and King could garner sufficient Republican votes to avoid a filibuster. Murkowski told me that she had not yet spoken to her Republican colleagues about the bill, but plans to do so.

“I haven’t done my missionary work yet,” King said about whether he believed other Republicans could sign onto his and Murkowski’s legislation. “It’s certainly a nonpartisan issue. We’re not attacking anybody, and actually the intention of this is to strengthen the Supreme Court.”

Suggestions of a code of ethics for the Supreme Court have largely been anathema to congressional Republicans. Senator Chuck Grassley, a senior Republican on the Judiciary Committee, highlighted the revised ethics rules for Supreme Court justices announced by the Judicial Conference of the United States last month. The new reporting rule narrowed the exemption for “personal hospitality.” “Right now, I’d take the view that before I make a decision and we need to pass laws, I’d have to be proven that the [Judicial Conference] rules are not adequate,” Grassley told me. He also added that he believed the reporting on Thomas was a “hit job” and “very unfair and intellectually dishonest.”

However, Senator Josh Hawley, a Republican on the Judiciary Committee, told me that he had not yet seen the new measure from King and Murkowski but seemed open to conversation on the issue. “I’ve proposed a stock trade ban, I want to ban stock trading for the executive branch, and I’d be happy to ban it in the Supreme Court as well. So that would fall under the code of ethics designation,” Hawley said.

Murphy said that the ideological makeup of the court—and of who has been embroiled in ethics concerns—factored into Republican willingness to address the issue. The court currently has a 6–3 conservative majority, including Gorsuch and Thomas.

“Though I am not rooting for any more liberal-leaning judges to have ethical problems, there’s no doubt that if the problem on the court was more ideologically diverse, it would make the solution set here easier to imagine,” Murphy told reporters. (Grassley argued to me that former Supreme Court Justices Ruth Bader Ginsburg and Stephen Breyer had previously amended their own disclosure reports, a critique echoed in Wall Street Journal opinion pages.)

Ethical concerns may contribute to the erosion of faith in the court, as recent polling has shown that public trust in the Supreme Court is at a historic low. A September Gallup poll—taken after the Supreme Court overturned the federal right to have an abortion—found that only 47 percent of U.S. adults say they have “a great deal” or “a fair amount” of trust in the judicial branch headed by the Supreme Court—a 20 percent drop from 2020. Fifty-eight percent of Americans said they disapproved of how the court is handling its job, a record high.

Despite the high-profile reports regarding ethical concerns and the criticism they have engendered, Chief Justice John Roberts this week declined to testify before the Senate Judiciary Committee after a request from its chair, Senator Dick Durbin, citing “separation of power concerns and the importance of preserving judicial independence.” Along with his letter, Roberts attached a “statement on ethics and principles” signed by all nine justices. The committee will still hold a hearing in May to “review common sense proposals” for subjecting the court to new ethics standards, Durbin said in a statement. The committee chair continued that he had invited Roberts to testify before the committee “in an attempt to include the Court in this discussion.”

“But make no mistake: Supreme Court ethics reform must happen, whether the Court participates in the process or not,” Durbin said. “It is time for Congress to accept its responsibility to establish an enforceable code of ethics for the Supreme Court, the only agency of our government without it.”