Today’s revelations about a Hobby Lobby leak and a years-long influence campaign at SCOTUS underscore major ethics problems at the Court that cry out for an immediate solution.
With only a few legislative days until Christmas break, here are five practical things that Congress can do — and we’re focusing on Congress here since SCOTUS won’t do anything — between now and the end of the year in response:
1. Pass the Supreme Court Ethics, Recusal and Transparency Act. The bill would require the justices to write and adopt an ethics code, strengthen their recusal rules and require greater accounting of their perks, provisions that are all more apt today than they were yesterday. It passed House Judiciary in May, so getting to the House floor should not be hard, and Speaker Pelosi has made positive overtones. The Senate side is more difficult, of course, but post-House passage, you can bypass Committee, at least. Plus, as a parting gift, retiring Sen. Leahy might consider adding the bill to the appropriations package set for a vote next month. Even passage by a single house would be historic and indicate that Congress isn’t letting SCOTUS off the hook for its pattern of ethics abuses.
2. Hold hearing(s). Though there’s no law or written rule that prevents Congress from calling Justice Alito or Justice Thomas to testify about their dealings with Rev. Schenck and his former associates, there’s no chance the two would do it if asked, and the justices would also ignore any congressional subpoena. And yet, the public deserves a more detailed accounting of the revelations in the Times, so Rev. Schenck and his former associates should be compelled to testify ASAP by either or both chambers.
3. Get to the bottom of what’s happening at the Supreme Court Historical Society. We’ve been complaining for months (no. 6) about how the Society is an unnecessary pay-for-access boondoggle, and now’s the time to act. Congressional leaders should call the current and former heads of SCHS to testify with Rev. Schenck to ascertain the extent to which the organization is being used to influence the justices (just look at the names — Wright, Crow, Sekulow, Clement, etc.).
4. Get a Member to threaten to withhold the justices’ funding until they act on ethics. One of the great disappointments of the last few years is that with the justices not adopting an ethics code, among other oversights, and with the judiciary as a whole failing to adequately improve its workplace conduct policies, House and Senate Appropriations continue to rubber-stamp their budgets year after year. We realize it’s probably too late in this Congress to do anything about this, but will one single, solitary member of an Appropriations Committee step up and say “no more”? We’re redoubling our efforts on that after today. Our take: if the nine can’t bother with ethics, then taxpayers shouldn’t bother with a nine-figure slush fund. (The discretionary spending in the SCOTUS FY23 budget is more than $120 million — $143.6 million requested, minus the $3 million for the justices’ salaries and an estimated $19 million for the SCPD.)
5. Push the House and Senate Judiciary Committees to request additional resources in the next Congress to be used for investigations. Already today we’ve seen countless people and groups calling for investigations into the Alito Hobby Lobby leak. Let’s be real: who is going to carry out these investigations? Neither party has a bench of individuals on Committee staff that could complete such a resource-intensive task. But now is the time to ensure the Committees have these resources in 2023.
Fix the Court’s Gabe Roth said: “When major revelations come out demonstrating an institution’s wholesale ethics failures, you might expect members of that institution going to great lengths to fix the faults and repair their image. But then again, we’re talking about the Supreme Court — a body that is increasingly thumbing their collective noses at decorum and failing to feel shame for dishonorable actions.
“I expect Chief Justice Roberts to do what he always does — sit on his hands and hope the scandal disappears. But here’s the thing: we’ve reached a breaking point, and the sense the American public has that the justices are compromised and can be influenced like any old politician is here to stay.”