Senior Senate Democrats see the annual funding bill for the Supreme Court as a way to force Supreme Court Justice John Roberts to adopt ethics reforms in the wake of controversies surrounding conservative Justices Samuel Alito and Clarence Thomas.
Specifically, some Democrats want to tie Supreme Court funding to the justices’ adoption of an ethics code in the funding bill overseen by the Financial Services and General Government Subcommittee, which has jurisdiction over the high court’s budget.
“I think the court is really wildly out of line now, particularly in not even having a process for a fact-finding” for allegations of ethical misconduct, said Sen. Sheldon Whitehouse (D-R.I.), the chair of the Senate Judiciary Subcommittee on Federal Courts and Oversight.
“Only nine people in the entire U.S. government have no process, and ironically it’s the ones who are supposed to be in charge of process of law, so it’s not a tenable position for the court to remain in, and if it takes a little bit of a nudge from the Appropriations Committee, I would welcome that,” he said of adding Supreme Court ethics requirements to its annual funding bill.
Tension between Senate Democrats and conservative Supreme Court justices have escalated in recent weeks amid reports that two flags associated with the Jan. 6 attempt to overturn the results of the 2020 election were displayed at Alito’s Virginia home and New Jersey beach house.
On Monday, Rolling Stone magazine reported a secret recording of Alito speaking at the Supreme Court Historical Society’s annual dinner when he appeared sympathetic to the idea that Americans need to “return our country to a place of godliness” and observed the nation as one of “fundamental” differences that “can’t be compromised.”
“One side or the other is going to win,” he was recorded saying at the event.
This is likely to fuel Democrats’ perception of Alito as a partisan and reenergize attempts to rein in the conservative justices, who now have a 6-3 majority.
Sen. Chris Van Hollen (D-Md.), the chair of the Financial Services and General Government Committee, wanted to move forward with language last year requiring the court to adopt an enforceable ethics regime.
Van Hollen still supports the proposal, according to sources familiar with the discussion among Senate Democrats.
The language under consideration would make some funding for the court contingent on the Supreme Court adopting an enforceable set of ethics standards and would not affect any funding for the court’s security.
But the bold tactic to pressure Roberts does not currently have the support of Senate Appropriations Committee Chair Patty Murray (D-Wash.), who had a deal with Senate Republicans last year to exclude controversial policy riders from the spending deal.
Sen. Susan Collins (R-Maine), the vice chair of the Appropriations Committee, who is negotiating the spending deal with Murray, has warned against adding Supreme Court ethics reform to its annual funding bill.
“I think to do that would compromise the independence of judiciary,” Collins said when asked about tying court funding to ethics reform.
Senate Democratic sources say Murray wants to keep the appropriations process on track and will likely renew her agreement with Collins to keep so-called poison pills out of the appropriations bills so they can pass out of the Senate Appropriations Committee with the same levels of bipartisan support they had last year.
“We’re talking, we’re trying to figure out the best path forward, so we’re working on it,” she told The Hill of her negotiations with Collins.
Murray is holding back from endorsing the idea of adding Supreme Court ethics language to appropriations legislation to maintain bipartisanship on the committee.
She is a co-sponsor of the Supreme Court Ethics, Recusal and Transparency Act, which would require the Supreme Court to adopt a binding code of conduct and create a mechanism to investigate alleged violations. The bill has more than 40 co-sponsors, but not a single Republican has signed on so far.
Some Democrats are taking a closer look at using the appropriations process as leverage over Roberts after the chief justice rebuffed a request by Senate Judiciary Committee Chair Dick Durbin (D-Ill.) and Whitehouse to meet with them to discuss Alito’s recusal from Trump-related cases and the court’s adoption of an enforceable code of conduct.
Roberts in a letter to the senators said that such a meeting “would be inadvisable” given what he cited as “separation of powers concerns and the importance of preserving judicial independence.”
Sen. Richard Blumenthal (D-Conn.), another member of the Senate Judiciary Committee, called on Roberts in a recent letter to use his authority, which includes the power to assign the drafting of majority opinions, to pressure Alito and Thomas to recuse themselves from cases related to Trump.
Senate Democrats are coming under growing pressure from groups on the left to investigate Alito after The New York Times reported that an upside-down American flag, a symbol of the “Stop the Steal” movement, was displayed at Alito’s home after the 2020 election.
More than 60 national organizations, including the Leadership Conference on Civil and Human Rights and the AFL-CIO, wrote a letter to senators Monday urging them “to use the full power of the Senate Judiciary Committee to investigate and respond swiftly to these newest developments in the ongoing ethics crisis at the U.S. Supreme Court.”
The groups also called on the Senate to pass “robust judicial ethics reform legislation” and to “immediately launch an investigation into the latest issues surrounding Justice Alito’s behavior and issue findings into potential violations of the Code of Conduct for Supreme Court justices.”
The groups also cited reporting by ProPublica that Thomas received hundreds of thousands of dollars in gifts and hospitality from a wealthy Republican donor.
The watchdog group Fix the Court last week reported that Thomas received $4 million in gifts during his time on the court, citing the reporting by ProPublica.
The other signatories included Alliance for Justice, the American Federation of Teachers, the League of Conservation Voters, the NAACP, the National Women’s Law Center and Planned Parenthood Federation of America.
Durbin last week said he’s not ready to subpoena Alito or Thomas — or Roberts — despite the pressure from progressives.
Senate Democratic aides note that any subpoena of Supreme Court justices would need 60 votes in the Senate to be enforced, something unlikely to happen given Republican opposition.
“They don’t understand Senate rules,” Durbin said of progressive groups that want him to subpoena Alito and Thomas. “Under Senate rules to issue a subpoena, you either have to do it on a bipartisan basis or you have to have 60 votes on the Senate floor to enforce it.
“There’s a limitation on the Senate side you don’t find on the House side,” he said.
Durbin said “there’s more we’re considering” but ruled out subpoenas.