Supreme Court Ethics Reform

The subpoenas will be the most aggressive action that Senate Judiciary Democrats have taken to acquire information related to its legislative efforts—which are justified and necessary. Leonard Leo, Harlan Crow, and Robin Arkley have repeatedly offered defensive, dismissive refusals to legitimate legislative inquiries, and subpoenas are required to inform our efforts going forward.

The Supreme Court’s ethical crisis is a problem of its own making. Senator Durbin first urged Chief Justice Roberts to address the need for the Court to establish an enforceable code of conduct 11 years ago. The Chief Justice refused to take the opportunity then and continues to do so now. He could today adopt a resolution binding the justices to the same ethical code of conduct and enforcement mechanisms that apply to lower court judges.

By refusing to take the sensible steps needed to establish an enforceable code of conduct, the justices have ensured that public confidence in the Court and its integrity will continue to plummet. Since the Chief Justice’s refusal 11 years ago, the justices have engaged in dozens of reported instances of apparent unethical conduct—and many more instances of potential misconduct may remain unknown to us. By accepting these lavish, undisclosed gifts, the justices have enabled their wealthy benefactors and other individuals with business before the Court to gain private access to the justices while preventing public scrutiny of this conduct.

We still do not know the full scope of who has gained private access to the justices and how the current ethics regime is failing to identify and discourage these practices. Thanks to investigative reporting, we now know that for decades some justices have been joining billionaires with business before the Court on their private planes and yachts or receiving gifts such as private school tuition for a family member. It is through this reporting that we learned the justices have not been disclosing these gifts as required by laws they purport to follow. But this is just what we know from investigative reporting. In order to adequately address this crisis, it is imperative that we understand the full extent of how people with interests before the Court are able to use undisclosed gifts to gain private access to the justices. 

The inquiries the Committee has sent to Harlan Crow; the holding companies that own Crow’s private yacht, jet, and camp; Leonard Leo; and Robin Arkley—among others—are critical to this work. However, unlike other individuals and organizations who have received similar inquiries in this matter, Leo and Arkley have outright refused to comply with these legitimate oversight requests and have engaged in no good-faith negotiations with the Committee. While Harlan Crow’s public responses to the Committee’s requests are similar to the arguments of Leo and Arkley, he initially showed a willingness to engage with the Committee through private counsel. However, his offers to produce certain limited information fell well short of what the Committee needs—and to which it is entitled. Since the Committee rejected his proposal as insufficient, Crow has shown no further willingness to cooperate.

The bill would require Supreme Court Justices to adopt a code of conduct, create a mechanism to investigate alleged violations of the code of conduct and other laws, improve disclosure and transparency when a Justice has a connection to a party or amicus before the Court, and require Justices to explain their recusal decisions to the public.

Contrary to Republican claims, the reality is that the Committee has validly authorized subpoenas to Mr. Leo and Mr. Crow, who are central players in the Supreme Court ethics crisis. Their attempts to thwart the legitimate oversight efforts of Congress should concern Democrats and Republicans alike. The degree of bluster and obfuscation from the minority is a measure of how determined they are to protect the ability of billionaires with business before the Court to woo justices with undisclosed luxury gifts. Senate Democrats are equally determined to move forward with our efforts to reform Supreme Court ethics. The highest court in the land cannot have the lowest ethical standards.