Whitehouse Co-Leads Senate Judiciary Committee Hearing on Supreme Court Ethics Reform
Whitehouse’s SCERT Act would require the Supreme Court to adopt stricter disclosure rules and establish a process for investigating a justice’s misconduct
Washington, DC – Today, Senator Sheldon Whitehouse (D-RI), in his capacity as Chairman of the Senate Judiciary Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights, co-led a hearing of the full Judiciary Committee entitled, “Supreme Court Ethics Reform.” The hearing explored the recent torrent of media reports detailing unethical conduct by Justices of the Supreme Court and legislative solutions to improve ethics, accountability, and transparency at the nation’s highest Court.
“We are here today because the Supreme Court is playing out of bounds of the ethics rules for federal judges. Justices read the ethics rules in unique and eccentric ways, and when they’re caught out of bounds they refuse to allow any investigation of the facts,” said Whitehouse.
Whitehouse concluded, “Until there is an honest ethics process at the Supreme Court, these messes will continue. The Court has conclusively proven that it cannot police itself.”
Senator Whitehouse’s legislation would remedy the Supreme Court’s ethical shortfalls that were the focus of the hearing. In February, Whitehouse and Rep. Hank Johnson (D-GA) reintroduced the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act, comprehensive legislation to create a much-needed process for investigating misconduct at the Supreme Court, strengthen recusal standards for judges and disclosure rules for special interests trying to influence the courts, improve disclosure of gifts and travel for judges, and mandate the creation of a binding code of ethics. The SCERT Act would require the Supreme Court to adopt disclosure rules for gifts, travel, and income that are at least as rigorous as ethics rules for members of Congress. The New York Times editorial board endorsed the legislation last month.
The hearing followed a bombshell ProPublica report exposing that Justice Thomas and his wife accepted extravagant vacations worth as much as $500,000 on the dime of Republican megadonor Harlan Crow and did not disclose the travel. That reporting was later followed by an additional ProPublica story detailing Crow’s purchase of a string of properties from Justice Thomas and his family members, which was not properly disclosed.
We are here today because the Supreme Court is playing out of bounds of the ethics rules for federal judges. Justices read the ethics rules in unique and eccentric ways, and when they’re caught out of bounds they refuse to allow any investigation of the facts.
The “personal hospitality” problems I’ve been pursuing began with Justice Scalia, who took more than seven dozen undisclosed hunting vacations. Most people know of two, the one where he was on the Air Force Two manifest with Dick Cheney, and the one where he died. There were seventy-plus more. It was systematized. Some intermediary would ask the owner of an expensive resort, often a commercial property, to extend to Scalia a “personal” invitation to the resort. Even where the owner was someone he’d never met, Scalia treated as “personal hospitality” because of the “personal invitation,” and failed to disclose the vacations. Gun industry advocates, fossil fuel folks, and Republican political figures often tagged along. No reasonable reading of the term “personal hospitality” would cover this, but the Supreme Court let this go on for years.
So then, I asked the circuit courts what they thought about this conduct. I went 0 for 13 on answers. That would be Exhibit 3. I went 0 for 13 on answers so I then sent another letter, saying I hoped their silence didn’t indicate some kind of coordinated obstruction. Exhibit 4. I also scheduled a subcommittee hearing. Presto, I was told the Financial Disclosure Committee would examine how the exemption was interpreted. That’s Exhibit 5. Almost a year later, two weeks before the recent news about Justice Thomas broke, the Judicial Conference updated its guidance to clarify that this sort of nondisclosure violates the law. Exhibit 6.
I have no evidence that any federal judge outside the Supreme Court ever used the “personal invitation” trick; and the Judicial Conference, made up of other judges, firmly shut it down. Regular judges would be loath to use that trick, because a complaint about it would go into a proper process, and would be investigated, and measured against the law and the ethics code, and a conclusion would be reached, and that conclusion could be embarrassing. Only Supreme Court justices refuse to allow their conduct to be investigated or reviewed. My bill would fix that.
Here’s an example of the no-investigations problem: the key fact, to determine whether Justice Thomas was bound by law to recuse himself from the first January 6 Committee case, was what he knew about his wife’s insurrection activities, and when he knew it. On that fact, the lawfulness of his initial recusal decision turns, yet Thomas has never been officially asked that question. It’s a cover-up in plain view. The Supreme Court, alone among federal courts, is okay with that. My bill would fix that.
Which brings us to Justice Thomas’s recent non-disclosure of supposed “personal hospitality” from a right-wing billionaire, and its problems.
First problem: private jet travel is not in the personal hospitality exemption, which is limited to “food, lodging and entertainment.” Exhibit 7. Some textualist, by the way.
Second problem, Thomas said it was okay because he’d asked colleagues. But that Financial Disclosure Committee? It’s there to ask about financial disclosure. Exhibit 8. Setting aside that its name should give a clue, Thomas knew the Committee existed, because concerns about his yacht and jet travel gifts from this billionaire were referred there in 2011, after some of these gifts were first revealed in this New York Times story. Exhibit 9.
Third problem, there is no legal way not to disclose the property acquisition in Georgia.
Fourth problem, some of this personal hospitality involved people dedicated to turning the Court into a tool for right-wing billionaires—namely Leonard Leo. This guy doesn’t have business before the Court, his business is the Court.
This disclosure mess has again been referred to the Financial Disclosure Committee, which raises the question of the previous referral to that same committee of the same billionaire’s gifts to Thomas of yacht and jet travel. The rules seem to require the Committee to report its findings to the Judicial Conference; the records of the Judicial Conference are public; and the records of the Judicial Conference contain no mention of any such report. So what became of the 2011 referral? Did anyone intervene? Is the Committee still considering the 2011 referral, more than a decade later? There is much yet to learn, which is why last week I sent a letter to the courts asking for further answers. Exhibit 10.
Three things are needed to fix all this: better enforcement, better recusal rules, and better disclosures. My bill would do all three.
I thank Chairman Durbin for this joint hearing, and look forward to getting to the bottom of this mess. Until there is an honest ethics process at the Supreme Court, these messes will continue. The Court has conclusively proven that it cannot police itself. Nemo judex in sua causa.
Meaghan McCabe, (202) 224-2921
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