I was astounded when Chief Justice John G. Roberts Jr. thumbed his nose at Congress by declining an invitation to testify May 2 before the Senate Judiciary Committee on tightening the Supreme Court’s ethical standards.
The snub came in the wake of press revelations that Associate Justice Clarence Thomas had not reported extravagant gifts from two millionaires, including travel on yachts and private jets to exotic overseas resorts, or a windfall real estate deal. In his April 25 letter to Senate Judiciary Committee Chairman Dick Durbin (D-Ill.), Roberts said that the Court’s existing ethics and reporting standards are adequate.
Roberts spent the bulk of his letter condemning what he claimed was the near-unprecedented nature of the invitation for a chief justice to testify before the Senate Judiciary Committee on anything other than appropriations or nominations. Citing Supreme Court Library records, he claimed only Chief Justice William Howard Taft in 1921 and Chief Justice Charles Evans Hughes in 1935, had done so, both on matters of judicial administration and lower court judgeships and administration.
The Senate committee released an immediate response, based on Congressional Research Service data, showing that since 1960 chief justices have appeared to testify before congressional committees at least 92 times on such matters as the constitutional role of judges, judicial security, annual appropriations for the courts, and judicial compensation.
Roberts’s mind-boggling use of the term “separation of powers” as a shield to prevent Congress from interfering in any way with the court’s ethical standards comes across as a supra-declaration of independence from the other branches. Even in eighth grade civics class we learned that separation of powers was not a stand-alone doctrine that incubated each branch from interference by the others. It was complemented by checks and balances and shared powers to ensure that no single arm of government could dominate the others.
While Roberts did concede Congress had certain authority over the courts, such as appropriating money for their operations, paying judges’ salaries and retirement benefits, and even in creating new federal courts and judgeships, he seemed to draw a line in the sand and dared Congress to cross it.
I have some firsthand knowledge and experience with the subject, having served as co-counsel of the House Bipartisan Task Force on Ethics that produced the Ethics Reform Act of 1989 (H.R. 3660; Public Law 101-194). It substantially revised existing ethics laws applicable to government and applied them across-the-board to all three branches: the legislative, executive, and yes, even the judicial.
The centerpiece of the law, at least from a media standpoint, was a pay raise for officials in all three branches. But it also imposed strict new limits on gifts, travel, outside income, required annual financial disclosure statements to be filed and made public, and banned paid honoraria to House members.
I don’t recall any Supreme Court justice at the time whining about Congress imposing ethics standards on the courts or challenging such standards, let alone turning down their judicial branch pay raises. On the contrary, the Ethics Reform Act of 1989 was widely praised as a harmonious coming together of all three branches of government in imposing and upholding high ethical standards.
What is at issue today is the level of scrutiny and diligence exercised by the Supreme Court in overseeing and enforcing the ethical rules and standards it claims apply to itself. The fact that Thomas admitted that his failure to file public reports on his luxury travels was based on advice given to him by a couple of colleagues speaks volumes about just how lax ethical mindfulness and enforcement practices are in the highest court in the land.
Part of the problem is practical: The Judicial Conference of the United States oversees all the lower federal courts but has no jurisdiction or authority over the Supreme Court. Nevertheless, Roberts, in the appendix he attached to his April 25 letter to the Senate, co-signed by all his colleagues on the court, includes a “List of Judicial Ethics Authorities” for which the Judicial Conference has promulgated regulations. It may not be a “Catch-22,” but it sure looks like a “Catch-Me-If-You-Can.”
Meantime, the Senate Judiciary Committee is proceeding with its hearings and deliberations into how to bring the Supreme Court under stricter, more accountable ethical standards. There are some, like Durbin, who have called on Congress “to accept its responsibility to establish an enforceable code of ethics for the Supreme Court, the only agency of government without it.”
There are others who at least want to enact a law to require the court to establish its own code of conduct, as both houses of Congress do, but ensure that its disclosure and reporting requirements are not riddled with loopholes and escape clauses. Either way, the court better sit up and take notice: There’s a new sheriff in town.
Don Wolfensberger is a Congress Scholar at the Woodrow Wilson International Center for Scholars, former staff director of the House Rules Committee, and author of, “Changing Cultures in Congress: From Fair Play to Power Plays.” The views expressed are solely his own.