Are There No Checks and Balances on Supreme Court Ethics?

Chief Justice John Roberts has declined the Senate Judiciary Committee's invitation to testify at a public hearing about ethics rules for Supreme Court justices. He cites "separation of powers concerns and the importance of preserving judicial independence." That argument does not hold water.

As Roberts and other justices of the high court are fond of reminding us — when they rule to restrict executive action or find congressional legislation is unconstitutional or not clear enough — ours is a constitutional “system of checks and balances.”

Just three years ago, in Trump v. Mazars USA, LLP, the court, by a 7-to-2 majority, upheld congressional subpoenas that asked for information about the finances of then-President Donald Trump and his businesses to help guide the sort of legislative reform that the Senate should now enact concerning Supreme Court ethics.

Roberts explained in that ruling that "each House has power 'to secure needed information' in order to legislate." That power is "broad" and "indispensable," and "It encompasses inquiries into the administration of existing laws, studies of proposed laws, and 'surveys of defects in our social, economic or political system for the purpose of enabling Congress to remedy them.'" A congressional subpoena that serves that "valid legislative purpose" should be enforced.

In that case, the Trump administration argued that congressional subpoenas addressed to the president should be quashed unless Congress proves there is a "demonstrated specific need" for the information requested and it is "demonstrably critical" to Congress’ legislative purpose. But the court rejected that argument because the information Congress requested was not subject to executive privilege. The court noted, "We decline to transplant that protection root and branch to cases involving nonprivileged, private information." It found that when privileged information is not at stake, Trump's proposed standard "would risk seriously impeding Congress in carrying out its responsibilities."

Roberts concluded that concerns about the separation of powers should bar Congress from seeking the president's personal papers when other sources could provide the information Congress needs, the subpoena should not be broader than reasonably necessary to support Congress's legislative objective, Congress should adequately identify its aims, and the burdens imposed on the president's time should be considered. But, the court stated, the bottom line is that "when Congress seeks information 'needed for intelligent legislative action,' it 'unquestionably' remains the duty of all citizens to cooperate," and Roberts emphasized the word "all."

There cannot be any question that Congress now needs Roberts' testimony “for intelligent legislative action” on the critical question of Supreme Court ethics. He should provide it, without a subpoena.

A litany of ethics questions have been raised. For just a few examples: Justice Clarence Thomas received benefits of very significant value from GOP donor Harlan Crow, and Thomas’ wife is alleged to have been involved in efforts to overturn the 2020 election. Justice Samuel Alito is alleged to have leaked his decision in the Hobby Lobby case to an anti-abortion activist with whom he had a close relationship.

In this highly politically charged time, it is appropriate to consider whether there should be disclosures of justices’ relationships with individuals with an agenda for court action. It is no secret that, for many years, certain Republican activists have criticized many Republican-appointed justices for failing to vote the “right” way. Justices Lewis Powell, John Paul Stevens, Harry Blackmun, David Souter and even ultimately Sandra Day O’Connor, Anthony Kennedy, and now Roberts himself have been attacked for not voting the party line consistently enough. To avoid this “problem,” such activists have undertaken to scrutinize more closely the record of potential nominees to the court to identify individuals who would be less likely to stray from particular dogma.

Another method to achieve that objective could be to befriend justices and surround them with echo chambers that reinforce certain views and make it less likely that they will be open to other positions.

How many more ethics questions must be raised — and how many more years must pass without the court taking appropriate action — before Congress finally says that enough is enough? The absence of reasonable binding ethics rules does not preserve judicial independence. It does the opposite. Judicial independence can be preserved only when there is no question of untoward influence and when individual justices do not hear cases when there is even an appearance of conflict.

Since the justices exercise so much power, since they are so willing to ignore precedent in some cases, and since they refuse to impose reasonable binding ethics rules on themselves, our constitutional system of checks and balances is well-served by the current Senate inquiry. Roberts should cooperate, not blow it off. The first step to begin to restore confidence in the court would be to let the sunshine in.

Michael J. Dell is a lawyer who litigates and writes about constitutional issues.