Republican senators are leaning on Chief Justice John Roberts to do something about the Supreme Court's appearance problem in the wake of reports that conservative Justices Clarence Thomas and Samuel Alito accepted luxury vacations from conservative donors.
While Republicans don’t support Supreme Court ethics reform legislation sponsored by Democrats, they think the reports that Thomas and Alito accepted expensive vacations funded by wealthy donors has created a real public relations problem for the court.
These lawmakers want Roberts to take the issue of legislation out of Congress’s hands by issuing a judicial code of ethics or some other updated statement of principles for he and his fellow justices.
“I think it would be helpful for the court to up its game. I don’t want Congress to start micromanaging the court but I think confidence-building would be had if they were more clear on some of this stuff,” said Sen. Lindsey Graham (S.C.), the top-ranking Republican on the Senate Judiciary Committee.
ProPublica this week reported that Alito flew on a private plane owned by hedge fund billionaire Paul Singer to a luxury fishing lodge in Alaska in 2008.
Alito later decided not to recuse himself from a 2014 case that pitted the Republic of Argentina against American creditors, including Singer. Singer’s hedge fund ultimately gained a $2.4 billion payout after the Supreme Court ruled 7-1 in its favor.
Alito explained in a Wall Street Journal op-ed that he did not include the private flight to the King Salmon fishing lodge on his financial disclosure reports because he viewed it as personal hospitality exempt from disclosure requirements.
Graham had previously called on Roberts to address criticism of the Supreme Court’s ethics policies after ProPublica reported earlier this year that Thomas had accepted luxury trips and other perks from Republican megadonor Harlan Crow over the course of two decades — none of which Thomas had included in financial disclosures.
ProPublica reported that Crow paid the tuition for Thomas’s grand-nephew at a private boarding school and that one of Crow’s companies bought a house in which Thomas had a one-third financial interest.
Graham told The Hill in April that the court should adopt new ethical guidelines.
“A lot of us are really leery of micromanaging the other branch, but I think that’s where the court is headed. At least that’s where I hope they are,” he said at the time.
“The reason we have these [ethics] rules on our side [of government] is to make sure people feel confident, and I think that’s where the court is headed.”
It’s unclear if Roberts could get his fellow justices to agree on any new course of action. But it’s clearly becoming a growing concern for some Republicans.
“I think that the nine justices need to get on the same page,” said Sen. Thom Tillis (R-N.C.), a member of the Judiciary Committee. “I believe the Article III branch should address concerns amongst themselves without congressional intervention.
“I think it’s a process that the justices should go through and get consensus,” he added. “The chief justice can’t do it on his own.”
Asked if he thinks the Supreme Court has a public perception problem, Tillis said, “I do.”
“I think it’s time to show progress,” he said.
Roberts told an audience at the American Law Institute on May 23 that he and his fellow justices are working to reassure the public that it adheres to “the highest standards of conduct.”
“We are continuing to look at things we can do to give practical effect to that commitment. And I am confident that there are ways to do that consistent with our status as an independent branch of government and the Constitution’s separations of powers,” he said.
Yet a month later, the court hasn’t made any new announcement about its ethical rules or procedures.
Tillis thinks Roberts is having trouble getting all nine members of the high court to agree on how to address concerns about its conduct and adherence to ethical guidelines.
“If you had nine justices saying, 'We need to address this,' then they would be doing something. So logic tells me maybe there’s not consensus,” he said. “They need to sort it out. It’s their institution; they should preserve the integrity.”
Asked about Alito’s fishing trip, Sen. John Cornyn (R-Texas), another Judiciary Committee member, said, "All of us need to be concerned about the public confidence in the courts, but this is not something that Congress has the authority over.”
“This is something that the court itself needs to come to grips with. I hope that John Roberts will do that,” he said. “I understand they’re still working on a review of their ethics policy.”
Senate Judiciary Committee chairman Dick Durbin (D-Ill.) and Sen. Sheldon Whitehouse (R.I.), a key subcommittee chairman, announced Wednesday that they will mark up Supreme Court ethics legislation after the July 4 recess, but so far only one Republican, Sen. Lisa Murkowski (R-Alaska), has sponsored a Supreme Court ethics reform bill.
Senate Republican Leader Mitch McConnell (Ky.) told reporters Wednesday that Congress needs to “stay out” of the court’s business.
Brian Fallon, the executive director of Demand Justice, a progressive advocacy group that favors Supreme Court reform, said the reports of Alito and Thomas accepting lavish gifts from wealthy donors has put GOP senators in a tough spot.
“These Republicans are caught between a rock and a hard place. On the one hand, they don’t want to have to cooperate with Democrats on ethics legislation, because it sort of accepts the premise that the Republican justices are behaving corruptly and there’s a need to rein them in,” he said.
“The second thing is this constant drip, drip, drip of scandals emanating out of the court that is causing the courts to be highly salient politically with the public is making the Republicans’ resistance to ethics legislation look even worse,” Fallon added.
“The Republican lawmakers are sort of being dragged down with the court, because by running interference for the court on any of these ethics bills, they are attaching themselves to them and they are putting themselves in the position of having to defend every new scandal that comes out about trips that were taken by Clarence Thomas or Sam Alito,” he added. “The obvious solution in their minds is: ‘Roberts, this hot potato belongs in your lap, if you would just self-administer some improved ethics guidelines, then it would take some of the oomph out of these stories.’"
Carrie Campbell Severino, the president of JCN, a conservative advocacy group that favors “the Founders’ vision of a nation of limited government,” disputed the view that the Supreme Court has an image problem.
“The only image problem after ProPublica’s recent reporting is ProPublica’s own image attempting to cast completely legal and ethical behavior as somehow wrong,” she said. “Their reporting was absolutely shoddy.”
Severino said the notion that “Justice Alito’s fishing trip … would have triggered recusal obligations is absurd.”
“It’s even more absurd that the cases they’re talking about were decided by overwhelming majorities,” she said. “The Argentina case was not even close.”
ProPublica reported that Severino and JCN filed an amicus brief supporting Singer’s interest in the case, Republic of Argentina v. NML Capital.
Sen. Cynthia Lummis (R-Wyo.) said she agrees with GOP colleagues who want the court to address the growing criticism of its ethical standards.
“I certainly believe it’s in the Supreme Court’s and John Roberts’s not only perusal but best interests to address this issue to the satisfaction of the public and use the standards that should apply to anyone in the executive or legislative branch with regard to ethics,” she said.
While Supreme Court justices are subject to the Ethics in Government Act of 1978, which requires justices to file annual financial disclosure reports, they are not covered by the Code of Conduct for United States Judges, which covers all federal district and appellate courts.
Roberts included a statement of principles in an April 25 letter to Durbin, noting that Supreme Court justices agreed in 1991 to “follow the substance” of the Judicial Conference Regulations but cautioned they “are broadly worded principles” and “not themselves rules.”
The Judicial Conference revised its financial disclosure rules in March to specify that judges must disclose nonbusiness stays at resorts, the use of private jets and when gifts of hospitality are reimbursed by a third party.
Murkowski has co-sponsored a bill with Sen. Angus King (I-Maine) that would require the Supreme Court to establish its own ethics code and appoint an official to review potential conflicts and public complaints.
But so far, King, the lead sponsor, hasn’t found any other Republicans to sign on to the legislation.
King told The Hill that he was somewhat surprised that the proposal didn’t muster more bipartisan support since it didn’t prescribe any specific ethical rules for the court.