February 14, 2023

The Scheme 20: The Ethics-Free Zone Around The Supreme Court

Mr. President, I am back today now for the 20th time to shed a little light on the dark money scheme to capture and control our Supreme Court. Part of what allows that scheme to flourish is the ethics-free zone around the Supreme Court. It is quite unique. So let’s look at it.

The last time I gave this speech, No. 19, I walked through the various problems with how the Supreme Court handles allegations of misconduct by the Justices. The short answer is that it doesn’t.

The U.S. Supreme Court is the only court in the country not covered by an ethics code. And worse than that, it is the only part of the Federal Government that has no process for ethics investigation and enforcement—none.

Now, any meaningful ethics regime contains three things: first, a process for receiving complaints; second, a process for investigating those complaints once they are received; and, third, a process for reporting the result and holding powerful people accountable should those complaints turn out to be merited. The House and the Senate, for instance, we have our Ethics Committees. The executive branch has inspector generals and the attorney general. The Federal courts, except the Supreme Court, have their own investigative procedures. It is just the Supreme Court that has none. The closest you get is probably a motion to recuse.

Let’s start with the difficulty of raising ethics complaints with the Supreme Court. People who are concerned about ethics violations over at the Court have to get pretty creative because the Court has no place to submit an ethics complaint. If you like, there is no inbox.

We saw this play out when Judge Kavanaugh became Justice Kavanaugh. Multiple ethics complaints were pending against Judge Kavanaugh. The lower courts, like the DC Circuit that he was sitting on, do have a process for receiving complaints and for investigating them; and pursuant to that process, a special panel was appointed to review the complaints against Judge Kavanaugh. But as soon as Judge Kavanaugh squeaked onto the Supreme Court as Justice Kavanaugh—poof—the lower courts lost jurisdiction over him, and the complaints had to be dismissed mid-investigation.

Now, the complaints could have been refiled up at the Supreme Court, but there was no place to file them. We saw the problem again when a man named Robert Schenck sent Chief Justice Roberts a letter explaining how he learned, after a donor’s private dinner with Justice Alito and his wife, how the Supreme Court was going to rule in the Hobby Lobby decision.

Apparently, a letter directly to the Chief Justice isn’t a proper way to lodge a complaint because Schenck never heard back from the Court. Months later, Schenck then went to the New York Times, which was following up on an earlier POLITICO story about Schenck’s covert lobbying campaign to have wealthy rightwing donors invite some of the Justices to meals, to their vacation homes, or to private clubs. It took the press, the fourth estate, to fill in the investigatory gap about that $30 million wining and dining campaign.

More recently, a former coworker of the Chief Justice’s spouse alleged ethics problems with the Chief Justice’s failure to disclose financial connections between his spouse and parties and law firms appearing before the Court. With no mechanism to ask the Supreme Court to review whether this arrangement presented a conflict, the former coworker sent his complaint around to congressional offices in hopes that someone might take it seriously somewhere. Again, the complaint made it to the fourth estate; and, again, without an inbox at the Court or a process, it took journalists to give the inquiries an airing.

Set aside the merits of these complaints, the point is: They never got in the door for the Court’s consideration. The Court’s refusal to receive ethics complaints is unique to the Supreme Court, and I submit it is not serving the institution well. So even if there were an inbox for an ethics complaint, the Court still has no process to investigate it.

Turn back to Mr. Schenck. After the New York Times reported on his allegation, there was understandable public uproar. Chairman HANK JOHNSON and I wrote to the Court as Courts Subcommittee chairs to ask whether it was investigating the allegations.

After months of silence, amid growing public clamor, the Court did something it almost never does: It acknowledged the accusations. Mr. President, I have a two-page letter from the Court’s legal counsel, which I ask unanimous consent to have printed in the RECORD at the conclusion of my remarks. In that letter, the Court said the equivalent of: Justice Alito says he didn’t leak the decision, and that is good enough for us. No mention in the letter of the lobbying campaign or of private wining and dining and no description of anything resembling an actual investigation.

I have been the attorney general of my State, a position that has criminal jurisdiction across the entire State. Only three attorneys general in the country have that; Rhode Island is one of them. I have been the United States attorney for my State and led Federal investigations. I know a little bit about investigations. It is ‘‘investigation 101’’ to take statements from witnesses. That is how you make a record, and that is how you deter lying: by tying people to a statement so they can be held accountable if it turns out that the statement is false. No sign in the letter that that was done.

Same again with Justice Thomas regarding his refusal to recuse himself from cases implicating his wife’s efforts at overturning the 2020 election. Back in January 2022, Justice Thomas participated as the lone dissenter in a decision that allowed the House January 6 Select Committee access to records from the Trump White House. And a couple of months later, it turned out that Justice Thomas’s wife had texted with White House officials repeatedly about overturning the 2020 election. So she was clearly covered by that investigative effort by the January 6 Commission. He did not recuse; and, indirectly, it was suggested that Justice Thomas knew nothing at all about his wife’s activity, so he didn’t need to recuse.

OK. But that is a fact question. What did Justice Thomas know about his wife’s activities at the time of the case? Easy to ask him. Easy to take a statement from him. But no sign that that was done. So, of course, no statement and no consequences.

Later, after the reporting about Justice Thomas’s wife’s activities came out in the public press and he failed to recuse himself in another case, the issue was no longer just a fact question about what Justice Thomas knew, he was now on notice about his wife’s conduct, and he still did not recuse. Why not? Again, no justification, no investigation, no conclusion.

The Court has repeatedly failed to investigate or even acknowledge this glaring problem, which brings us to the third element of an effective ethics regime: accountability and transparency—a report at the end. An investigation ought to be designed to get to the truth and to report its findings so that people can be held accountable for wrongdoing and the public can have confidence in the outcome. That is a statement so obvious I find it hard to believe I actually have to say it here about the Court.

The one investigation we have seen the Supreme Court undertake was done in response to the Alito draft opinion leak. As an investigation, it was pitiful and marred with conflicts.

My surmise—my surmise—is that in the heat of the Court’s ire about the leak, the assumption was made that some clerk or staffer was responsible. Chief Justice Roberts directed the Marshal of the Court to investigate. He called the leak a ‘‘singular and egregious breach of trust that is an affront to the Court and the community of public servants who work here.’’ Well, for more than 8 months, the public waited to find out whether the Marshal’s investigation would live up to the Chief Justice’s words.

In the end, the Court’s handling of the Dobbs investigation was a case study in how not to conduct a fair and transparent investigation. The problems were numerous, not least that the Marshal of the Court isn’t normally responsible for leading investigations. But the problem that really emerged was that some of the prime suspects for the leak were her bosses, and the investigation held the Justices to a different standard than everyone else at the Court.

Everyone else at the Court had to sit down for formal interviews, had to turn over their private communications, had to sign affidavits under oath, but when it came to the Justices, it was different. They were subject to something that the Court called an iterative process. I have no idea what an iterative process is. I can tell you what it isn’t. It isn’t an investigative process. The Justices even asked questions of their own—some statement.

The premise seems to be that even here, the Justices can never be investigated. This was going to be a top-tier investigation as long as it looked like it was going to be clerks and staff, but once it looked like it might be Justices involved in the leak, suddenly the wheels fell off. I have never seen an investigation where the investigator called in a third party to provide public assurance that they did a good job, like a little sidecar running next to the investigation: Yeah, they are doing a good job. In this case—worse—it was a third party with conflicts of interest, with relationships with obvious suspects and with contracts with the Court.

So if you compare all of that with how misconduct investigations are handled everywhere else in the Federal Government, you see some pretty big discrepancies. In the executive branch, Congress has established inspectors general who are surrounded by professional staff experienced in internal investigations. IGs know how to conduct real interviews and record witness statements. Congress has its own internal procedures and investigators for ethics complaints. We have our Ethics Committee. The House has its Ethics Committee. Congress set up procedures for ethics investigations in the lower courts. They exist. Judges are investigated, and people can know where you submit your complaint and how that complaint gets investigated.

The Supreme Court is unique across the entire Federal Government in being impenetrable to investigation, from no ethics inbox, to no process for reviewing a complaint, to no credible report at the end of the day. The highest Court in the land should not be held to the lowest standards in government.

So last week, Congressman HANK JOHNSON and I, joined by Senator BLUMENTHAL and Congressmen NADLER, QUIGLEY, and CICILLINE, reintroduced our Supreme Court Ethics, Recusal, and Transparency Act. Our bill would finally require the Supreme Court to have not just a code of conduct but a real process to enforce that code and other Federal ethics laws. Our bill would also update judicial ethics laws, ending the ability of judges to ignore conflicts of interest and their recusal obligations; requiring Justices of the Supreme Court to disclose gifts and travel, as other Federal officials do; and exposing the real interests appearing at the Court behind amici curiae who lobby the Court under fake names.

Apparently, there has been a halfhearted effort at the Court to begin to deal with this. The Washington Post reported last week that the Justices discussed for years a binding code of ethics to no result, and the effort seems to have fallen apart. So that leaves Congress in the position that if they won’t fix it, we will.

There are many problems plaguing our Supreme Court. Far-right, darkmoney interests spent years stacking the Court with their handpicked Justices, who in turn have delivered for those interests at every available opportunity. We need to undo the damage wrought by the Court that dark money built and by those who built it, but we can start—we can start—by bringing basic standards of integrity to the Supreme Court, standards all other judges follow and standards that govern all high-ranking Federal officials across all three branches of Government—officials who are paid by taxpayers to serve the best interests of the American people.

To be continued.