US Supreme Court Justices of the Roberts Court
The Roberts Court (since October 2020), front row (L to R): Samuel Alito, Clarence Thomas, Chief Justice John Roberts, Stephen Breyer, and Sonia Sotomayor. Back row (L to R): Brett Kavanaugh, Elena Kagan, Neil Gorsuch, and Amy Coney Barrett. Credit: Fred Schilling via / Collection of the Supreme Court of the United States

Connecticut certainly has its faults. Yes, taxes are too high, the permitting regime is among the worst in the nation and the state and local governments have more than their share of thieves.

But if you’re an ethics nerd like yours truly, our state is looking better and better – not because there has been a sudden surge in ethical behavior among our public officials (that would be too much to hope for), but because Connecticut’s two U.S. senators have taken a keen interest in pushing the Supreme Court of the United States to adopt an ethics code.

“The United States Supreme Court acts as if it’s answerable to no one and accountable for nothing,” said Sen. Richard Blumenthal. “That cannot be our democratic system of government.”

“This is the most ethically compromised Supreme Court in the history of the country,” added Blumenthal’s colleague, Sen. Chris Murphy.

The move on the part of the Senate Judiciary Committee, of which Blumenthal is a member, to require the court to come up with a code of ethics follows multiple revelations by media outlets earlier this year, most notably by ProPublica, that Justices Clarence Thomas and Samuel Alito failed to disclose expensive gifts and vacations and later did not recuse themselves from cases they heard that were related directly or indirectly to the gift-givers.

Indeed, Thomas ruled on cases regarding the Jan. 6, 2021, insurrection, even though his wife attended the rally preceding the riot and was involved in efforts to overturn the results of the 2020 presidential election. Just this week, ProPublica published another story about Thomas, alleging that “megadonor” Harlan Crow even reduced his own tax liability by taking Thomas on free cruises on Crow’s yacht.

Finally, the Associated Press reported last week that Justice Sonia Sotomayor used her taxpayer-funded Supreme Court staff to book speaking engagements and perform tasks related to the sales of Sotomayor’s books, which have earned her at least $3.7 million since she joined the court in 2009. The AP also found that universities have used visits by justices to seek large donations and that justices have taken expense-paid teaching trips that featured few actual lessons.

By contrast, federal employees and members of Congress have strict limits on gifts and clear disclosure requirements set forth by ethics panels in both the House and Senate. In addition, there are rules governing what kinds of work congressional staffers can perform for their bosses.

As a matter of journalism, I do wonder why it was the AP that broke the story about the liberal Justice Sotomayor, and not ProPublica, which has an entire section of its website devoted to the ethical problems of conservative Justices Thomas and Alito. Either ProPublica isn’t inclined to report critically on liberal justices, or its sources in the high court stand in opposition to the conservative justices. Either way, it’s not a good look for ProPublica, which styles itself as “an independent, nonprofit newsroom that produces investigative journalism with moral force.”

Be that as it may, Democratic U.S. Sen. Dick Durbin, who chairs the Judiciary Committee, said he’s been calling on the Supreme Court to adopt an enforceable code of conduct for more than a decade. So has Murphy, for that matter. A bill sponsored by Judiciary Committee member Sheldon Whitehouse, the “Supreme Court Ethics, Recusal, and Transparency Act of 2023,” will be voted on by the full committee tomorrow. If it passes, it will likely go before the full Senate.

Durbin says the bill would require Supreme Court Justices to adopt a code of conduct, “create a mechanism to investigate alleged violations of the code of conduct and other laws, improve disclosure and transparency when a Justice has a connection to a party or amicus before the Court, and require Justices to explain their recusal decisions to the public.”

Now who on earth could be opposed to such a reasonable requirement? Mitch “Old Crow” McConnell, that’s who. Writing in the Washington Post, the Senate minority leader suggested progressives are striking a pose and taking retribution on the court for a series of unfavorable rulings on affirmative action, student loan forgiveness and affirming that a website designer could refuse services to a same-sex couple:

“Democrats on the Senate Judiciary Committee are trying to tell a coequal branch of government how to manage its internal operations, ostensibly to clean up its ‘ethics,'” he wrote.

As someone who doesn’t belong to a political party, I’m not terribly concerned about the motives of McConnell and Whitehouse (I actually agree with the SCOTUS ruling rejecting the Biden administration’s unilateral forgiveness of federal student loan debt). I just want the court to adopt some measures of transparency and comply with the same requirement that every other federal court must adhere to.

The more salient (and interesting) question is whether one co-equal branch of government can tell another branch how to manage its own affairs. The Judiciary Committee, however, was careful not to write a code of ethics for the high court. Rather, the panel left the specifics up to the court and its chief justice.

As for the constitutionality of the committee’s proposal, legal opinion appears to be split. Whitehouse, a former U.S. attorney who also served as Democratic attorney general for Rhode Island, says Congress “absolutely” can impose ethics reform on the high court. Indeed current ethics codes governing the conduct of lower-court judges were mandated by an act of Congress, Whitehouse said, though he acknowledges that Congress has no authority to interfere with actual decisions rendered by the court.

Perhaps the most crucial question is what happens if Congress passes the Judiciary Committee’s law, the president signs it and the Supreme Court refuses to comply? How could Congress possibly enforce it? Sue the high court? Could a lower federal court order the Supreme Court to comply? Could the high court appeal to itself? Break out the popcorn, folks.

Contributing op-ed columnist Terry Cowgill lives in Lakeville, is a Substack columnist and is the retired managing editor of The Berkshire Edge in Great Barrington, Mass. Follow him on Twitter @terrycowgill or email him here.

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