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The Senate Judiciary Committee voted to authorize subpoenas to a right-wing activist and a billionaire megadonor in relation to their efforts to influence Supreme Court Justices

The subpoenas are 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 and Harlan Crow have repeatedly offered defensive, dismissive refusals to legitimate legislative inquiries, and subpoenas are required to inform our efforts going forward.

Bottom line: Supreme Court ethics reform is critical to re-establishing trust in the Supreme Court, applies to all Justices equally, and is demanded by the American people

How We Got Here

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 code of conduct the Court announced in November lacks any meaningful enforcement mechanism and falls short of the ethical standards that bind other federal 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; and Leonard Leo—among others—are critical to this work. However, unlike other individuals and organizations who have received similar inquiries in this matter, Leo has outright refused to comply with these legitimate oversight requests and has 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, 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. Shortly before the subpoena vote, Robin Arkley complied and provided a sufficient response to the Committee’s requests.

Due to the intransigence of Leo and Crow, the Committee was forced to seek compulsory process to obtain the information they hold. That’s why Chair Durbin asked the Committee to grant him authorization to issue subpoenas to these individuals

The Timeline

April 10, 2023: U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, led a full committee letter to Chief Justice Roberts to investigate Justice Thomas’s undisclosed gifts as reported by ProPublica and take action to prevent further misconduct.

  • April 21, 2023: The Committee received a response from the Secretary of the Judicial Conference of the United States, which stated that the Senators’ April 10th letter was referred to the Judicial Conference and forwarded to the Judicial Conference Committee on Financial Disclosure.

April 20, 2023: Durbin invited the Chief Justice to testify before the committee regarding Supreme Court ethics.

  • April 25, 2023: The Chief Justice declined the invitation.

April 27, 2023: After Chief Justice Roberts declined his invitation to testify, Durbin led a full committee letter to the Chief Justice seeking additional information on the Court’s Statement on Ethics.

May 2, 2023: Durbin held a full committee hearing on Supreme Court ethics reform.

May 8, 2023: Durbin led all Senate Judiciary Committee Democrats in a letter to Harlan Crow seeking information on gifts and travel given to Justice Clarence Thomas.

  • May 22, 2023: The Committee received an inadequate response from a law firm representing Crow in response.
  • May 26, 2023: Following Crow’s response, Durbin and U.S. Senator Sheldon Whitehouse (D-RI) sent a follow-up letter to Crow refuting his reasoning for noncompliance, which received a clear, unwarranted refusal on June 5.
  • October 5, 2023: Following Crow’s refusal, Durbin led all Senate Judiciary Committee Democrats in a letter rejecting his separation of powers defense, as well as his proposal to provide only partial information to the Committee.

May 17, 2023: Whitehouse held a subcommittee hearing on judicial ethics processes at the Judicial Conference.

July 10, 2023: Durbin and Whitehouse announced committee markup of the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act.

July 11, 2023: Durbin and Whitehouse sent letter to the Supreme Court Historical Society (SCHS).

  • August 7, 2023: SCHS provided a partial production. On September 9, SCHS completed their production.

July 11, 2023: Whitehouse and Durbin sent letters to Leonard Leo, Robin Arkley, and Paul Singer.

  • July 25, 2023: Leo and Arkley both submitted responses refusing to comply.
  • August 14, 2023: Singer provided a limited response.
  • October 5, 2023: Following refusals, Durbin led all Senate Judiciary Committee Democrats in letters rejecting their separation of powers defenses, which received a nonresponse from Leo and Arkley.

July 20, 2023: The SCERT Act advanced out of committee.

August 3, 2023: Durbin and other Democratic Judiciary Committee members sent letter to Chief Justice Roberts urging him to ensure Alito’s recusal in Moore v. United States.

  • September 8, 2023: Justice Alito responded in a statement and refuses to recuse himself.

September 14, 2023: Whitehouse and Durbin send letters to Paul Novelly and David Sokol.

September 22, 2023: Durbin called for Justice Thomas to recuse himself in Loper Bright Enterprises v. Raimondo.

  • July 8, 2024: Durbin issues statement on Justice Thomas' failure to recuse.

October 30, 2023: Durbin and Whitehouse announced vote to authorize subpoenas for Crow, Leo, and Arkley related to Supreme Court ethics reform.

November 2, 2023: Durbin unveils the subpoena authorization resolution at the Committee's executive business meeting.

November 8, 2023: Durbin announces that the committee will no longer vote to authorize a subpoena for Robin Arkley II, following his cooperation.

November 30, 2023: The Senate Judiciary Committee votes to authorize subpoenas for Harlan Crow and Leonard Leo.
March 19, 2024: Durbin issues statement on federal judiciary clarifying that justices and judges must disclose the value of free trips.
May 17, 2024: Durbin calls for Justice Alito recusal from cases related to the 2020 election after a "Stop the Steal" symbol was displayed in his yard.

  • May 22, 2024: Durbin speaks on the Senate floor on the need for Justice Alito's recusal.
  • May 24, 2024: Durbin, Whitehouse request meeting with Chief Justice Roberts and urge him to ensure Justice Alito recuses himself in 2020 election cases.
  • May 29, 2024: Durbin responds to Justice Alito's refusal to recuse himself in 2020 election cases.
  • July 8, 2024: Durbin issues statement on Justices Thomas' and Alito's failures to recuse themselves.

June 3, 2024: Durbin addresses the Supreme Court's ethical crisis on the Senate floor.

June 12, 2024: Senate Republicans block Durbin, Senate Judiciary Democrats' unanimous consent request to pass Supreme Court ethics legislation. [RECAP]

June 13, 2024: Durbin reveals omissions of gifted private travel to Justice Clarence Thomas from Harlan Crow.

July 9, 2024: Durbin speaks on the Senate floor about the Supreme Court's latest term upending our Constitutional landscape and the need for an enforceable code of conduct.

The Supreme Court Ethics, Recusal, and Transparency (SCERT) Act

In July 2023, the Senate Judiciary Committee advanced the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act to the full Senate.

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.

Senate Judiciary Committee Subpoenas to Investigate the Supreme Court Ethics Crisis were Validly Authorized

On November 30, 2023, the Senate Judiciary Committee voted to authorize subpoenas for Harlan Crow and Leonard Leo relating to the Committee’s Supreme Court ethics investigation. Contrary to Republican claims, the subpoenas were validly authorized, consistent with Senate and Committee rules and precedent. 

  • Unlike his Republican predecessors, Chair Durbin attempted to accommodate the minority’s purported desire to offer amendments. Chair Durbin made clear Democrats were prepared to vote on any of the 177 (largely nongermane) Republican amendments and offered to “stay here as long as you wish to offer amendments.” (11/30 Markup around 1:59:10)
  • Despite Ranking Member Graham previously saying Republicans would offer “a bunch of amendments” when Democrats brought up the subpoena authorization (11/9 Markup around 44:50), Republicans chose to filibuster the consideration of their own amendments.  Multiple times during the markup, Chair Durbin asked Senator Blackburn to offer the first amendment and other Republicans denied her that chance.
  • Chair Durbin only ended debate on the subpoena authorization after Republicans invoked the obscure and infrequently used Two-Hour Rule, proving they had no intention of ever voting on their own amendments.  This was after Ranking Member Graham suggested he would “waive the Two-Hour Rule” (11/30 Markup around 1:59:19).  
  • Unlike his Republican predecessors, Chair Durbin honored Ranking Member Graham’s point of order on the initial vote on the subpoena authorization and moved under Committee Rule IV to end debate.  Consistent with Committee precedent under then-Chair Grassley and then-Chair Graham, Chair Durbin ended debate after a majority of the Committee voted in favor of the motion.
    • On September 28, 2018, then-Chair Grassley proceeded to a vote on the nomination vote of then-Judge Brett Kavanaugh to the Supreme Court while ignoring points of order from Democrats and without any votes from Committee Democrats.
    • On August 1, 2019, then-Chair Graham proceeded to a vote on a partisan immigration bill without any votes from Committee Democrats, blocking Democratic amendments and ignoring Democratic points of order.
  • Having already refused to offer amendments to the subpoena authorization, Republicans tried to prevent the Committee from voting on the subpoena authorization by leaving the markup in an attempt to deny the Committee a quorum.  Following precedent set by then-Chair Graham, Chair Durbin proceeded with a vote on the subpoena authorization.  A majority of Committee members remained present throughout the vote.
  • Chair Durbin called for a vote on the subpoena authorization before the Senate floor, which gaveled in at 10:01am, had been open for two hours, in compliance with the Two-Hour Rule.
  • Like his predecessors, Chair Durbin’s actions are supported by Rule 26 of the Standing Rules of the Senate, which waives committee rules violations with the support of a live majority.  Republicans claim that, “Since the subpoena is an internal committee matter, it cannot be ‘cured’ by the ‘cleansing clause’ in Rule 26 of the Standing Rules of the Senate.” They cite no authority or precedent to support this baseless claim, because none exists.
  • Republicans implausibly claim that private citizens are not subject to Congressional subpoenas, and the Ranking Member has gone so far as to encourage Mr. Leo and Mr. Crow to tell the Committee to “pound sand.”  In fact, there is no private citizen exception to Congress’s subpoena power. When Senate Republicans were in the majority, they authorized subpoenas to private citizens, and House Republicans have issued subpoenas to private citizens with no objections from Senate Republicans.
    • On June 11, 2020, on a party-line vote, Republicans approved an unprecedented subpoena authorization for then-Chair Graham’s Crossfire Hurricane investigation, including blanket authorization to subpoena more than 50 named persons, many of them private citizens, and an unlimited number of unnamed persons.
    • On October 22, 2020, by a 12-0 vote with no Democrats present, Republicans approved a subpoena authorization allowing then-Chair Graham to subpoena Twitter CEO Jack Dorsey and Facebook CEO Mark Zuckerberg.

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.