The ‘Ethics’ Assault on the Supreme Court Democrats want to gain more political control over the Justices.
Senate Democrats are holding another hearing on “Supreme Court Ethics Reform” on Tuesday, and it’s important to understand that this isn’t about ethics at all. This is another front in the political campaign to delegitimize the Supreme Court, with a goal of tarnishing its rulings and subjecting it to more political control.
The campaign is on full display in the press, with reporters at multiple publications suddenly searching for supposed ethics violations or conflicts of interest. Our writers have examined and debunked these reports highlighting Justices Clarence Thomas and Neil Gorsuch in recent weeks.
It’s useful to expose for the record how thin these accusations are. But it’s also a mistake to assume that the facts matter to Democrats and their media researchers. This is a political project, and hyped accusations will continue to be asserted as if they are serious.
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“Ethics” is a time-honored political weapon in Washington, and it’s being used now against the Court because conservatives have a majority that is cleaning up some of the legal mistakes of recent decades. It has sent abortion policy back to the states (to the political benefit of Democrats in most places), expanded protections for the Bill of Rights, and is slowly restoring constitutional guardrails on the administrative state. Most of all, the Court is no longer a backstop legislature for progressives to impose policies they can’t get through Congress.
The first sign that this is all politics is the context for the hearing. Note that it’s been triggered by easily debunked reports about the conservative Justices, especially claims that Justice Thomas didn’t properly disclose certain financial transactions.
But Justice Ketanji Brown Jackson didn’t get the same attention when she revised her financial disclosures in 2022. Her oversights were far more extensive than Justice Thomas’s. There was also no outcry in 2020 when Justice Sonia Sotomayor amended her financial disclosures after the group Fix the Court found that she hadn’t disclosed reimbursement for trips to universities.
Nor was there an uproar when the OpenSecrets website reported in 2019 that former Justice Stephen Breyer was reimbursed for trips some 219 times from 2004-2018. Some of those trips were supported by the wealthy Pritzker family. There are other examples involving liberal Justices.
To be clear, we believe none of these Justices did anything wrong. But neither did Justice Thomas in having a rich friend in Harlan Crow or a minor oversight on one of his disclosure forms. Democrats didn’t mind any of this when they agreed with the Court’s opinions on gay marriage, abortion, or restraining Donald Trump.
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Senate Democrats invited Chief Justice John Roberts to appear Tuesday so they could attract the TV cameras, and the Chief wisely declined the honor. In his reply to Judiciary Chairman Dick Durbin, he also submitted a lengthy “Statement on Ethics Principles and Practices” that the Justices abide by. It’s an extensive list of laws and rules, and the Justices voluntarily follow the substance of Judicial Conference regulations. All nine Justices signed the statement.
Mr. Durbin says he merely wants the Justices to abide by the rules that Congress and the executive do. But the Justices don’t have the same power as legislators or regulators, who can instigate actions for or against parties they might have a relationship with. Judges hear cases or controversies that come to them, and they are obliged to recuse themselves if the case is one in which they have a financial interest or significant conflict.
Judges also hear cases and issue opinions in public for all to see. Members of Congress have no such record-keeping obligation and they specialize in the smoke-filled room. This difference explains why corruption cases involving Congress are frequent while those involving judges are relatively rare.
Speaking of judicial conflicts, in 2009 Rhode Island Sen. Sheldon Whitehouse recommended his pal and Democratic donor John McConnell for a federal judgeship. Judge McConnell later was a member of the Committee on Codes of Conduct of the U.S. Judicial Conference that sought to ban federal judges from belonging to the Federalist Society until these columns exposedthe scheme. Mr. Whitehouse detests the Federalist Society.
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Senators are floating proposals to impose a new ethical code on the Justices, with an outside monitor to enforce it. This is a bad idea and in our view unconstitutional. It would make the Court—an independent branch of government—answerable to an agent of Congress. The monitor would inevitably become a political weapon to attack unpopular Justices and intimidate the Court.
This is the real and dangerous political game that Democrats are playing when they talk about Supreme Court ethics reform.
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