Senate Judiciary panel advances Supreme Court ethics reform bill

Posted on July 20, 2023 (Updated July 20, 2023) by Alexander Bolton

The Senate Judiciary Committee voted along party lines after a more-than-three-hour markup Thursday to advance a Supreme Court ethics reform bill in the wake of media reports that conservative Justices Clarence Thomas and Samuel Alito accepted tens of thousands of dollars’ worth of gifts and perks from wealthy Republican donors.

The committee voted 11 to 10 to approve the Supreme Court Ethics, Recusal and Transparency Act, which would require justices to adopt a code of conduct and create a transparent process for members of the public to submit ethics complaints against members of the court.

Every Democratic member of the committee voted for the reforms while every Republican voted no.

The bill would also require the Supreme Court to adopt disclosure rules for gifts, travel and income received by justices and law clerks that are as rigorous as Senate and House disclosure rules.

It would establish a panel of chief judges from the lower courts to investigate and make recommendations in response to complaints and require greater disclosure of funding behind amicus curiae briefs to the court.

Senate Republicans filed 61 amendments to the legislation to drag out the Judiciary Committee’s markup for several hours. The panel ended up voting on fewer than a dozen of them.

Sen. Lindsey Graham (R-S.C.), the ranking member of the panel, accused Democrats of trying to “destroy” the court in retaliation for recent landmark decisions by the court’s conservative majority to overturn the constitutional right to abortion, to reject the affirmative action policies at Harvard University and the University of North Carolina and invalidate President Biden’s student loan relief program.

“What you’re trying to do is not improve the court, you’re trying to destroy it as it exists,” he told his Democratic colleagues on the panel.

“You have to look at this in terms of what’s been going on for a couple years,” he said, pointing to Senate Majority Leader Chuck Schumer’s (D-N.Y.) warning to conservative Supreme Court justices in a rally held outside the court in March of 2020 that they would “pay the price” for ruling in favor of abortion restrictions.

Schumer later clarified that he never intended to suggest anything other than political and public opinion consequences for the Supreme Court if it restricted abortion rights.

Graham also accused Democrats of wanting to expand the Supreme Court to dilute the influence of conservative justices.

“You have done just about everything there is to do to delegitimize this court,” he said. “Members of the Democratic leadership went to the steps of the Supreme Court and literally threatened people.”

Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) rejected that accusation.

“Some have suggested that Democrats are pursuing Supreme Court ethics reform to target the court’s current right-wing majority. Far from it. The reforms we are proposing would apply in equal force to all justices,” he said.

Durbin noted that he first urged Chief Justice John Roberts 11 years ago, when the composition of the court was much different, to adopt a binding code of conduct.

“Unfortunately, he did not accept my suggestion. Since then as more and more stories have emerged of justices’ ethical lapses, the American people’s confidence in the Supreme Court has dropped to an all-time low,” Durbin said.

ProPublica reported in April that Thomas accepted gifts of private plane travel and luxury vacations from Republican megadonor Harlan Crow over two decades without disclosing them publicly.

More from The Hill

The outlet also reported that Thomas didn’t disclose that one of Crow’s companies bought a property in Savannah, Ga., where Thomas’s mother lives and in which the justice owned a third interest.

Another ProPublica report revealed that Crow paid for the private school tuition for Thomas’s teenage grandnephew, whom Thomas said he was raising “as a son.”

ProPublica reported last month that Alito accepted a vacation at a luxury fishing lodge in Alaska in 2008 paid for by conservative donors and didn’t disclose it publicly.

Alito traveled to the lodge aboard a private jet owned by hedge fund billionaire Paul Singer and six years later ruled in a case, Republic of Argentina v. NML Capital, that resulted in Singer’s hedge fund recouping a $2.4 billion payout.

Sen. Mazie Hirono (D-Hawaii), a member of the panel, argued Thursday that Thomas’s wife, Ginni, a conservative activist, accepted payments from groups with business before the court that were not properly disclosed.

“How is it that you can have a Supreme Court justice who does not recuse himself when his wife is involved in the very issue that is before him?” she said. “Those kinds of examples really raise the question of why the Supreme Court shouldn’t have a code of ethics.”

More recently, liberal Justice Sonia Sotomayor came under criticism after The Associated Press reported that the her staff pushed colleges and a library to purchase copies of her book when she was scheduled to speak at their sponsored events.

Democrats voted along party lines to defeat Republican amendments to the bill, including one sponsored by Graham to empower the Supreme Court’s police force to investigate threats to justices and another by Sen. John Cornyn (R-Texas) to allow judges to carry guns for self-protection without restriction by state and local laws.

Durbin argued that the Department of Justice and FBI already has the job of investigating threats against justices and voiced concerns that expanding the mission of the Supreme Court’s relatively small police force would overtax it and require additional resources.

Durbin and other Democrats argued that Cornyn’s gun proposal wasn’t relevant to Supreme Court ethics reform. Cornyn argued that arming justices would protect them from potential attackers motivated by criticism of their decisions and ideology.

Democrats also defeated an amendment sponsored by Sen. Marsha Blackburn (R-Tenn.) to delay the implementation of the Supreme Court ethics reform bill until Congress learns who leaked a draft of the court’s opinion in Dobbs v. Jackson Women’s Health Organization, which overturned the constitutional right to an abortion.

Durbin said Blackburn’s proposal wouldn’t do anything to address the “crisis of confidence” in the court.

The committee adopted an amendment sponsored by Sen. John Kennedy (R-La.) to condemn denigrating rhetoric used against Thomas or any justice. Republicans who supported the amendment cited several examples of Democratic officials using such rhetoric to criticize Thomas.

—Updated at 4:50 p.m.

Supreme Court Deals Major Blow To Texas, Louisiana In Deportation Lawsuit

Posted on June 26, 2023 by The Center Square

By Bethany Blankley (The Center Square)

The U.S. Supreme Court dealt a major blow to Texas and Louisiana Friday in a lawsuit over a Biden administration policy that’s helped effectively end most deportations of foreign nationals in the U.S. illegally.

Rather than rule on the merits of the case, in United States v. Texas, the court ruled 8-1 that the states didn’t have standing, or a legal right, to challenge the policy.

Justice Samuel Alito wrote the sole dissent, arguing the justices ignored “a major precedent.”

He wrote:

“The Court holds Texas lacks standing to challenge a federal policy that inflicts substantial harm on the State and its residents by releasing illegal aliens with criminal convictions for serious crimes.

In order to reach this conclusion, the Court brushes aside a major precedent that directly controls the standing question, refuses to apply our established test for standing, disregards factual findings made by the District Court after a trial, and holds that the only limit on the power of a President to disobey a law like the important provision at issue is Congress’s power to employ the weapons of inter-branch warfare – withholding funds, impeachment and removal, etc. I would not blaze this unfortunate trail. I would simply apply settled law, which leads ineluctably to the conclusion that Texas has standing.”

Last June, a federal judge in Texas, U.S. District Judge Drew Tipton, ruled in favor of Texas and Louisiana, arguing they would incur costs due to the federal government’s failure to comply with federal immigration law and deportation policies. The judge ruled the states had standing to sue because of these costs. He also vacated the deportation policy, arguing it was unlawful.

The Biden administration appealed to the Fifth Circuit, which again handed a victory to the states by declining to stay the lower court’s ruling. The Biden administration appealed to the Supreme Court, which granted cert. Last fall, the court heard oral arguments and on Friday ruled the states lacked Article III standing.

Justice Brett Kavanaugh wrote for the majority and was joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. Justice Neil Gorsuch wrote a different opinion saying the states didn’t have standing for a different reason than the one Kavanaugh gave. He was joined by Justices Clarence Thomas and Amy Coney Barrett. Barrett also wrote her own concurring opinion and was joined by Gorsuch.

At issue is a final memorandum, “Guidelines for the Enforcement of Civil Immigration Law,” issued by Department of Homeland Security Alejandro Mayorkas, drastically altering deportation policies, including limiting issuing detainer requests for dangerous criminal aliens.

In Mayorkas’ final September 2021 memorandum, he also challenged federal law established by Congress that illegal entry is a crime in itself and a deportable offense. The policy states: “The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them. We will use our discretion and focus our enforcement resources in a more targeted way. Justice and our country’s well-being require it.”

Many news organizations reported the Supreme Court ruling would allow the administration to prioritize deporting violent criminals. But under the current administration, deportations immediately dropped by two-thirds in the first fiscal year of the administration, according to CBP data. In fiscal 2021, deportations also dropped to the lowest level since fiscal 1996 despite record-high illegal entries.

Mayorkas’ policy also followed President Joe Biden’s directive, who after taking office ordered a “pause” on deportations.

Last July, 19 attorneys general filed an amicus brief expressing support for Texas’ and Louisiana’s lawsuit, arguing Mayorkas violated federal law and DHS’s actions negatively impacted their states and jeopardized the safety and welfare of Americans.

The AGs argued, and still maintain, “The Amici States and their citizens continue to suffer significant costs from illegal immigration – including billions of dollars in new expenses relating to law enforcement, education, and healthcare programs – as a direct result of Defendants’ failures to enforce immigration law. Those harms are exacerbated by DHS’ increasingly brazen disrespect for the requirements of our nation’s immigration laws and the Administrative Procedure Act.

“The border is in crisis,” they argued. “This DHS Administration is lawless. And the States continue to suffer escalating irreparable harm as the border crisis continually intensifies to successive, ever-more unprecedented levels of illegal crossings.”

Syndicated with permission from The Center Square.

The post Supreme Court Deals Major Blow To Texas, Louisiana In Deportation Lawsuit appeared first on The Political Insider.

GOP senators want Roberts to take action on Supreme Court

Posted on June 26, 2023 (Updated June 26, 2023) by Alexander Bolton

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.

McConnell: Democrats should ‘stay out’ of Supreme Court’s business

Posted on June 21, 2023 (Updated June 21, 2023) by Alexander Bolton

Senate Republican Leader Mitch McConnell (Ky.) says Senate Democrats don’t have any jurisdiction over the Supreme Court’s ethics and should “stay out” of the court’s business, after ProPublica reported conservative Justice Samuel Alito accepted a luxury fishing vacation from wealthy benefactors.

Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) and Sen. Sheldon Whitehouse (D-R.I.), the chairman of a key Judiciary subcommittee, said in response to the report that they will mark up Supreme Court ethics legislation.

But McConnell sent a strong signal Wednesday that any Supreme Court ethics reform bill is not likely to get enough Republican support to overcome a filibuster.

“Look, the Supreme Court, in my view, can’t be dictated to by Congress. I think the chief justice will address these issues. Congress should stay out of it, because we don’t, I think, have the jurisdiction to tell the Supreme Court how to handle the issue,” he said.

McConnell said he has “full confidence” in Chief Justice John Roberts to address any ethical issues facing the court.

“I have total confidence in Chief Justice John Roberts to in effect look out for the court as well as its reputation,” he said.

The Senate GOP leader made his comments after ProPublica reported that Alito did not publicly disclose a 2008 trip he took to a luxury fishing lodge in Alaska, and that he flew there aboard a private plane owned by hedge fund billionaire Paul Singer.

Alito then did not recuse himself in 2014, when the Supreme Court ruled in favor of Singer’s hedge fund in a legal battle that resulted in the fund receiving a $2.4 billion payout.

Alito explained in a Wall Street Journal op-ed responding to ProPublica’s reporting that he was not required to report the trip nor recuse himself from the court case.

Senate Democrats warned Wednesday that they will take matters into their own hands if Roberts doesn’t announce new ethics guidelines for the high court soon.

“The highest court in the land should not have the lowest ethical standards. But for too long that has been the case with the United States Supreme Court. That needs to change. That’s why when the Senate returns after the July 4^th recess, the Senate Judiciary Committee will mark up Supreme Court ethics legislation,” Durbin and Whitehouse said in a joint statement.

“We hope that before that time, Chief Justice Roberts will take the lead and bring Supreme Court ethics in line with all other federal judges. But if the Court won’t act, then Congress must,” they said.

Whitehouse is the chairman of the Judiciary Subcommittee on Federal Courts, Oversight, Agency Action and Federal Rights.

Other Republicans joined McConnell in pushing back against Democratic calls to pass Supreme Court ethics legislation.

“They’ve been after everybody from Clarence Thomas to anybody they can get their teeth into to try to undermine the credibility of the court. I think all of us need to be concerned about the public confidence in the courts, but this is not something that the Congress has any authority over. This is something the court itself needs to come to grips with,” said Sen. John Cornyn (R-Texas), a senior member of the Senate Judiciary Committee.