How Senate Democrats Hope to Force the Supreme Court to Adopt an Ethics Code

Senator Dick Durbin shared with TIME the contours of an ethics overhaul package for the Supreme Court he expects his committee to vote on soon.

Senate Judiciary Committee Chairman Dick Durbin has been calling on the Supreme Court to change its ethics standards for almost a decade. Next month, he might finally get his chance to make it a reality.

In an interview with TIME, the Illinois Democrat shared the contours of a bill he expects his committee to vote on after the July 4 recess aimed at forcing the Supreme Court to establish for the first time an ethics code for the justices and clear rules dictating when justices must recuse themselves from cases. The proposed legislation is the latest effort by lawmakers to pressure the court to increase transparency and better police itself in the wake of revelations that justices had not disclosed extravagant gifts, travel and property deals.
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“What I’m really setting out to do is to restore the reputation of the court,” Durbin tells TIME. “If the court is going to maintain credibility and integrity, they have to address this issue now.” A recent poll from Quinnipiac shows that the Supreme Court’s approval rating sits at an all-time low of 29%, and some legal experts suspect that has less to do with its blockbuster decisions and more to do with scandals that are denting the public’s faith in the institution’s integrity.

The move to vote on the ethics package, Durbin says, was prompted by recent reporting by ProPublica about Justices Clarence Thomas and Samuel Alito. The news outlet reported last week that Alito took an expensive fishing trip with prominent GOP donor Paul Singer in 2008, but never reported the fishing trip on his annual disclosure form nor recused himself from cases before the court that involved Singer’s business. Under court policy, judges are prohibited from accepting gifts from anyone with business before the court. Alito responded in an op-ed that he wasn’t aware that Singer was connected to the cases when the cases went before the court. “It was and is my judgment that these facts would not cause a reasonable and unbiased person to doubt my ability to decide the matters in question impartially,” the justice wrote.

Another ProPublica investigation from earlier this year revealed that Thomas accepted luxury trips around the globe from billionaire GOP donor Harlan Crow without disclosing them. Thomas has also drawn scrutiny for selling a series of properties to Crow, including the home of his mother in a deal worth more than $100,000, and having Crow pay private boarding school tuition for Thomas’ grandnephew.

The investigations, Democrats say, underlined how few disclosure requirements are in place and how compliance is often left to the justices themselves. “There’s a grave ethics problem at the Supreme Court and pretty much everybody except the justices knows it,” Sen. Sheldon Whitehouse, a Democrat from Rhode Island who has been probing the Supreme Court’s ethics issues, tells TIME.

Although a final bill is yet to be drafted, Durbin says there are three subject areas that would be “definitely included” in the legislative text his committee plans to vote on. Those measures include a code of ethics, increased disclosure requirements, and clear rules dictating when justices must recuse themselves from cases. The goal with the legislation, he says, is to apply the same standards to the Supreme Court that govern lower courts.

Republicans have shown little interest in supporting any such legislation, meaning the Judiciary Committee’s bill likely lacks the votes to pass Congress. Durbin may even struggle to find the votes to get it out of the Senate, where Democrats hold narrow control. Nonetheless, it could still shape the debate over the court’s integrity in the next election cycle.

“I think all the Democrats will be for it. I suspect all the Republicans will be against it,” Whitehouse says. “And I think in large part that’s a testament to the politicization of the court.”

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Several Senators have already introduced their own ethics reform measures that they hope will be incorporated into the final text. Whitehouse, who chairs a subcommittee with jurisdiction over the federal judiciary, has pushed legislation that would give the justices 180 days to create a code of conduct, increase disclosure requirements and allow complaints to be filed against justices. A separate bipartisan bill by Sens. Angus King, an independent from Maine who caucuses with the Democrats, and Lisa Murkowski, a centrist-Republican from Alaska, would force the Supreme Court to establish its own ethics code and require it to appoint an official to examine potential conflicts and public complaints. Legislation introduced by Sen. Chris Murphy, a Democrat from Connecticut, would require the Judicial Conference, the administrative body that oversees the federal bench, to issue an ethics code that would apply to the court.

Under Whitehouse’s bill, justices found guilty of violating the code of ethics would not be subject to sanctions or suspensions from the federal bench, though civil fines and penalties may be imposed in some cases under existing law. “I think pushing beyond that is a challenge we don’t need to face,” Whitehouse says, noting that his bill would give the chief judges of the Circuit Courts of Appeal authority to make the final determination on ethics violations.

Durbin declined to share which specific provisions will be included in the final bill, but noted that he plans to put the issue before the full committee to decide. He predicted that Congress will be forced to act if Chief Justice John Roberts does not address the issue on his own.

During our interview, Whitehouse acknowledged that congressional passage of his bill is an almost impossible task given the narrow Republican majority in the House. But he hopes that by raising the issue of Supreme Court ethics, it at least educates the public and “sends a signal” to the Judicial Conference to “look more broadly at the concerns of the court.”

For years, Republicans have argued that the push to impose an ethics code is a politically motivated attempt to undermine the legitimacy of a conservative-leaning court. Senate Minority Leader Mitch McConnell, a Kentucky Republican, said last week that he doesn’t think Congress has the constitutional power to tell the Supreme Court how to handle ethics issues. “The Supreme Court, in my view, can’t be dictated to by Congress. I think the Chief Justice can address these issues, Congress should stay out of it,” McConnell told reporters. “I have total confidence in Chief Justice John Roberts.”

But many legal experts have argued that an ethics code for Supreme Court justices is long overdue. Charles Geyh, a law professor at Indiana University who focuses on judicial conduct and ethics, notes every state or federal court has subjected itself voluntarily to a code of conduct except the Supreme Court.

“The fact that we’ve got five justices on the Supreme Court right now who have been the subject of ethical questions… whatever they say they’re doing, it’s not working,” Geyh says. “Supreme Court justices have not been thinking deeply or seriously enough about the ethical responsibilities that normal judges think about thanks to having a code.”

Kyle Herrig, president of the watchdog organization Accountable.US, says that the ethics concerns at the Supreme Court highlight a recurring problem that has damaged the court’s reputation among the public. “It’s no surprise that these scandals have caused public trust in the Court to hit an all-time low,” he says. “While every single other federal judge is required to avoid behavior that so much as looks improper, our Supreme Court justices are taking lavish vacations with billionaires and failing to recuse themselves from cases where they have cozy relationships with involved parties.”

Roberts has so far resisted efforts by Congress to force changes to the high court he oversees, and declined a request to appear before the Senate Judiciary Committee this year to discuss the matter in detail. He acknowledged the ethics controversy at an event in Washington last month: “I want to assure people that I’m committed to making certain that we as a court adhere to the highest standards of conduct. We are continuing to look at things we can do to give practical effect to that commitment.”