Supreme Court Chief Justice John Roberts appears to have the upper hand in the fight over judicial ethics reform, with Senate Democrats unwilling at this point to subpoena him to gain leverage.
Democrats appear to be divided over the strategy of issuing a subpoena, in that they acknowledge it’s unclear whether they could even get majority support on the Senate Judiciary Committee.
“I’m not sure,” Sen. Peter Welch (D-Vt.) told The Hill when asked if they could get all 11 Democrats on the panel behind that effort. “It’s the reality of an 11-10 [majority]. … It just takes one.”
Subpoenaing Roberts could put more pressure on the Supreme Court to take tougher steps on ethics reform. It would also signal to voters and those pressing for action that Democrats are trying to use their power to win reform.
But it would also carry risks. A Republican member on the committee said it would inflame tensions on the panel to levels that would grind its work to a halt.
It could also step on the Democratic messaging on reproductive rights that Senate Majority Leader Chuck Schumer (D-N.Y.) has focused on in recent weeks. Democrats see abortion rights as a key issue to turn out their voters in November.
“You bring forth a Supreme Court justice and we go back to unleashing a whirlwind. … It becomes civil war,” the GOP member said. “It’s escalatory on a level you’ve never seen. It would be purely political, and then everybody just puts on the bare-knuckles and takes off the gloves.”
Democrats are feeling more pressure — and more frustration — over the court and its ethics as report after report surfaces that raises questions about the objectivity and political actions of some of the justices.
The New York Times last month reported on a pair of flags that were flown at Justice Samuel Alito’s homes, including an upside-down American flag over his Alexandria, Va., residence in the days surrounding Jan. 6, 2021, and President Biden’s inauguration.
Alito has maintained it was his wife’s decision, but it created yet another firestorm surrounding the court after a year of fights over ethics after numerous stories emerged detailing lavish gifts and vacations received by Alito and Justice Clarence Thomas.
On Friday, Thomas released a financial disclosure form that indicated two 2019 trips that he’d previously not disclosed were paid for by billionaire GOP donor Harlan Crow. Thomas’s form said the two trips were “inadvertently omitted” from his previous paperwork’s “reimbursement section.” The forms already had been reported by the media and spurred calls for reform.
Tensions are also high ahead of a decision expected this month by the court on former President Trump’s claims of presidential immunity from prosecution.
The latest revelations about Alito, who requested an extension on his filings ahead of a Friday deadline, led Senate Judiciary Committee Chair Dick Durbin (D-Ill.) to call for a meeting with Roberts over a push for Alito to recuse himself from a number of rulings on cases related to Jan. 6, 2021, that are set to be unveiled in the coming weeks.
The chief justice shot down that query in short order, leaving Democrats wondering how to proceed next. It also prompted Durbin to warn that a subpoena wasn’t a realistic route at this point, because it would not be enforced.
“I’m not going to preclude anything at this point, but I want all the members and the public to be realistic about what this issue involves,” Durbin said last week, noting the ethics matters lie in the hands of Roberts.
The situation has left Democrats upset, because they have precious few options at their disposal. They have been repeatedly stonewalled at every turn by the justices and Republicans, including in their push to subpoena Leonard Leo, the chair of the Federalist Society, and Crow, which created an uproar with GOP members on the committee.
The one legislative action they are angling for is a vote on the ethics bill authored by Durbin and Sen. Sheldon Whitehouse (D-R.I.) that has no chance of becoming law, even though some members still think it would be worthwhile to put it on the floor.
“It’s frustrating, but it’s understandable,” said Welch. “It’s very frustrating for us that we can’t unilaterally provide the remedy.”
Durbin told reporters last week that he’s discussed the possibility with Schumer, saying a vote now would be “timely.” Schumer added that the two of them were “discussing the best ways to move forward.”
“I certainly hope we’ll be able to find time,” said Sen. Mazie Hirono (D-Hawaii), a member of the panel.
The Supreme Court rolled out a new code of ethics in November. However, its impact is blunted by the ability for each justice to enforce it upon themselves.
For now, lawmakers have been left to fight it out in the court of public opinion.
“The battle is certainly public insofar as everything I’ve said has been either in letter or public statements,” said Sen. Richard Blumenthal (D-Conn.), a panel member who recently called on Roberts to stop issuing opinions and circuit judgeships to Alito and Thomas.
“Ultimately, what will generate compelling persuasion for the court is that it’s losing trust and credibility, which Chief Justice Roberts has to take into account as part of his legacy,” Blumenthal continued. “If he’s tolerating this kind of misconduct that degrades or destroys the court’s ability to function, he has to act.”