Senate Democrats Render A Verdict On Supreme Court Ethics

Senate Democrats wrapped up their extensive investigation of Supreme Court justices’ ethics practices Saturday, issuing a report blasting two conservative justices for accepting expensive gifts from wealthy benefactors and slamming Chief Justice John Roberts for a lackadaisical response to ethical lapses by his colleagues.

“Now more than ever before, as a result of information gathered by subpoenas, we know the extent to which the Supreme Court is mired in an ethical crisis of its own making,” outgoing Senate Judiciary Chair Dick Durbin said in a statement. “Whether failing to disclose lavish gifts or failing to recuse from cases with apparent conflicts of interest, it’s clear that the justices are losing the trust of the American people at the hands of a gaggle of fawning billionaires.”

The report levels its most strident criticism at Justice Clarence Thomas, alleging that he received gifts totaling millions of dollars since he joined the high court in 1991. “The number, value, and extravagance by Justice Thomas have no comparison in modern American history,” the report says.

Many of the trips, including one Thomas and his wife Ginni Thomas took by yacht and private jet in Indonesia in 2019 as a guest of billionaire developer Harlan Crow, were unearthed by ProPublica last year. However, the Senate Democrats claimed credit for turning up two previously unknown trips Crow treated Thomas to closer to home in New York, including one by yacht.

The report also alleges that Justice Samuel Alito failed to comply with federal law when he didn’t include on his annual financial disclosure form a private plane flight and lodging expenses for a fishing trip to Alaska in 2008 that was paid for by a billionaire hedge fund operator, Paul Singer.

Thomas and Alito have said they generally complied with guidance the courts gave judges at the time, which used a broad definition of “personal hospitality” that could encompass travel by boat or private airplane.

In addition to criticizing the justices, the Senate report took particular aim at the Judicial Conference of the United States, a policy-making body run by federal judges that sets ethics guidelines and advises on how to apply them. It tweaked the rules about personal hospitality last year and in September, but that did not satisfy Democratic senators.

“To date, the Judicial Conference has failed to adequately respond to the Supreme Court’s ethical crisis,” the report says.

“The highest court in the land can’t have the lowest ethical standards. So long as Chief Justice Roberts and the Judicial Conference refuse to act, we must push for a legislative solution to this crisis to restore trust in the highest court,” Durbin said.

However, the prospects for such legislation are dim. In July 2023, Durbin’s committee approved a bill to mandate the court’s adoption of an ethics code and create an enforcement mechanism involving lower-court judges in reviewing complaints.

But Republicans uniformly rejected the measure, pillorying it as a transparent attempt to punish conservative justices for their rulings on abortion, gun rights and other topics. In June, Durbin tried to pass the bill by unanimous consent, but several Republican senators objected.

With the House already in GOP hands, the Senate coming under Republican control next month and Donald Trump returning to the White House, legislation on the topic of Supreme Court ethics seems dead for the foreseeable future.

“It is really about the way the court decides cases that our colleagues on the other side of the aisle don’t like,” Sen. Lindsey Graham (R-S.C.) said earlier this year.

Conservative lawyer Mark Paoletta, who is close to Justice Thomas and has represented his wife Ginni Thomas, sought to prebut the Senate report before its expected release.

“This entire investigation was never about ‘ethics’ but about trying to undermine the Supreme Court because the Court is no longer acting like a super legislature handing down opinions implementing the Democrats’ political agenda,” Paoletta wrote on X Friday.

“Justice Thomas and Justice Alito COMPLIED with the laws, regulations, advice, and Judicial Conference rulings regarding the reporting of trips with friends. It was not required…no matter what Durbin and Whitehouse claim or wish,” Paoletta added.

Although the report castigates the court for ethical transgressions, the intense scrutiny of the justices by lawmakers and the press did break an apparent stalemate among the justices about how to respond to calls for a more rigorous ethics regime.

As public criticism of the court’s ethics practices intensified, the court gave ground twice: In April 2023, the justices publicly signed on to a set of ethics principles and in November of that year, they unanimously adopted an ethics code. The moves didn’t satisfy critics, including the Senate Democrats who drafted the new report, who noted the lack of an enforcement mechanism and the watering-down of some language between the first and second announcements.

Still, in light of public suggestions from Thomas, Alito and their allies that the ethics complaints were disingenuous attacks by their critics, the emergence of even a limited consensus from the nine-member court on ethics issues represented an achievement for Roberts in his efforts to rebuild the court’s credibility.

“It’s remarkable we were able to agree unanimously,” Justice Neil Gorsuch told CBS in August.

The public consensus, however, only lasted so long. Earlier this year, Justice Elena Kagan publicly endorsed adopting some external enforcement process. “We could and should try to figure out some mechanism for doing this,” she said in July. The court’s two other liberals have expressed openness to the idea, but some or all of the conservatives remain chilly to it.

While the Senate report’s main focus is on Thomas and to a lesser extent Alito, it also discusses controversies related to books published by other justices, including Sonia Sotomayor and Gorsuch. Efforts by Sotomayor’s aides to boost sales of her book prompted questions about use of official staff for personal projects. And both justices faced questions about their failure to recuse from cases involving the publisher who provided them with multi-million dollar advances.

The report is also sharply critical of justices for failing to recuse themselves from certain cases. The Senate Democrats said Justice Alito should have stepped back from cases related to the 2020 election because of the flags associated with the Stop the Steal movement his wife Martha-Ann Alito flew outside their homes and Justice Thomas should have recused from cases related to Donald Trump due to Ginni Thomas’ political activities and her contact with the Trump White House urging them to persist in disputing the 2020 election results.

However, the report does not address ethics and transparency concerns raised in recent years about the income streams for Justice Ketanji Brown Jackson’s husband Patrick Jackson, a surgeon who “periodically” consults on court cases, and about legal recruiting work done by Roberts’ wife Jane Roberts.