Senate Democratic leaders see the Supreme Court’s annual budget bill as a way to force Supreme Court Justice John Roberts into ethics reforms in the wake of the controversy surrounding conservative Justices Samuel Alito and Clarence Thomas.
Specifically, some Democrats want to tie the Supreme Court’s budget to the judges’ adoption of an ethics rule in a budget bill overseen by the Financial Services and General Government Subcommittee, which has jurisdiction over the Supreme Court’s budget.
“I think the courts are really, really out of whack right now, especially in not even having a process for fact-finding into alleged ethics violations,” said Sen. Sheldon Whitehouse (D-Ind.), chairman of the Senate Judiciary Committee on Federal Courts and Oversight.
“Only nine people in the entire United States government are ignorant of legal procedure, and ironically, those nine are the people who are supposed to be in charge of legal procedure. So it’s intolerable for the Supreme Court to remain in this position. I would welcome a little nudge from the Appropriations Committee,” he said of adding a Supreme Court ethics code to the court’s annual budget proposal.
Tensions between Senate Democrats and the conservative Supreme Court justices have risen in recent weeks following reports that two flags linked to the Jan. 6 attempt to overturn the results of the 2020 election were flown at Alito’s Virginia home and New Jersey beach house.
On Monday, Rolling Stone magazine reported on a secret recording of Justice Alito speaking at the Supreme Court Historical Association’s annual dinner, in which he expressed sympathy for the idea that Americans needed to “restore this nation to its sanctity” and viewed the country as one with fundamental differences that “cannot be compromised.”
“One of us is going to win,” he was recorded saying at the event.
This could strengthen Democrats’ perception that Justice Alito is partisan and rekindle efforts to rein in the conservative justices who currently hold a 6-3 majority.
Sen. Chris Van Hollen (D-Md.), chairman of the Financial Services and General Government Committee, had wanted to advance language last year that would require courts to adopt enforceable ethics regimes.
Van Hollen still supports the proposal, according to a source familiar with the discussions among Senate Democrats.
The language under consideration would make funding for the courts contingent, in part, on the Supreme Court adopting a set of enforceable ethical standards, but would not affect funding for court security.
But the bold tactic to pressure Roberts does not currently have the support of Senate Appropriations Committee Chairwoman Patty Murray (D-Wash.), who struck a deal with Senate Republicans last year to remove the controversial policy rider from the spending deal.
Sen. Susan Collins (R-Maine), vice chair of the Appropriations Committee, which is negotiating the spending deal with Murray, has warned against adding Supreme Court ethics reform to the annual budget bill.
Asked about tying court funding to ethics reform, Collins said, “I think doing so would undermine judicial independence.”
Senate Democratic sources said Murray wants to keep the spending process on track and is likely to renew his agreement with Collins to remove the so-called poison pill from the spending bill and get it through the Senate Appropriations Committee with the same level of bipartisan support as last year.
“We’re talking and trying to figure out the best way forward,” she told The Hill about her negotiations with Collins.
Murray has refrained from supporting the idea of adding Supreme Court ethics provisions to the budget bill in order to preserve the committee’s bipartisanship.
She is a co-sponsor of the Supreme Court Ethics, Challenge and Transparency Act, which would require the Supreme Court to adopt a binding code of conduct and create a mechanism for investigating alleged violations. The bill has more than 40 co-sponsors, but so far no Republicans have signed on.
Some Democrats are becoming more cautious about using the spending process as leverage over Roberts after Chief Justice Roberts refused to meet with them after Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) and the White House asked him to meet with them to discuss Justice Alito’s recusal from Trump-related cases and the Court’s adoption of enforceable codes of conduct.
In a letter to senators, Roberts said such a meeting would be “unwise,” citing “separation of powers concerns and the importance of maintaining judicial independence.”
Sen. Richard Blumenthal (D-Conn.), another member of the Senate Judiciary Committee, urged Justice Roberts in a recent letter to use his powers, including the power to delegate majority opinions, to pressure Justices Alito and Thomas to recuse themselves from Trump-related cases.
Senate Democrats have come under increasing pressure from left-leaning groups to investigate Alito after The New York Times reported that an upside-down American flag, a symbol of the “Stop the Steal” movement, had been displayed in 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, sent a letter to senators on Monday urging them to “use the full powers of the Senate Judiciary Committee to investigate and swiftly respond to the latest developments in the ongoing ethics crisis at the United States Supreme Court.”
The group also called on the Senate to pass “robust judicial ethics reform legislation” and “immediately launch an investigation into the latest issues surrounding Justice Alito’s conduct and announce the results of its investigation into potential violations of the Supreme Court Code of Conduct.”
The groups also cited a ProPublica report that said Thomas had received hundreds of thousands of dollars in gifts and entertainment from wealthy Republican donors.
Fix the Court, a watchdog group, reported last week, citing a ProPublica report, that Thomas received $4 million in gifts during his time on the Supreme Court.
Other signatories included the Alliance for Justice, the American Federation of Teachers, the League of Environmental Voters, the National Association for the Advancement of Colored People, the National Women’s Law Center and Planned Parenthood of America.
Durbin said last week that he wasn’t prepared to subpoena Alito, Thomas or Roberts, despite pressure from progressives.
Senate Democratic aides say a 60-vote Senate vote is needed to enforce a subpoena on a Supreme Court justice, an unlikely goal given Republican opposition.
“They don’t understand the rules of the Senate,” Durbin said of the progressive groups calling for subpoenas of Alito and Thomas. “The rules of the Senate say that to issue a subpoena, it has to be bipartisan or it has to have 60 votes in favor of the full Senate.”
“There are limitations on the Senate side that the House side doesn’t have,” he said.
Durbin said there was “more to consider” but would not issue subpoenas.
