Can The Power Of The Purse Force The Supreme Court To Formally Eschew Corruption?

In light of the latest discovery of gross bribery accepted by Clarence Thomas and his wife, 15 Democratic senators have requested, in a letter to the Appropriations Committee, that appropriations for the Supreme Court be tied to the Court finally promulgating a code of ethical standards for itself. The 15 are:

• Sheldon Whitehouse (RI)

• Bernie (VT)

• Elizabeth Warren (MA)

• Jeff Merkley (OR)

• Sherrod Brown (OH)

• Peter Welch (VT)

• Mazie Hirono (HI)

• Cory Booker (NJ)

• Richard Blumenthal (CT)

• Ron Wyden (OR)

• Robert Casey (PA)

• Michael Bennet (CO)

• Tim Kaine (VA)

• Mark Warner (VA)

• Alex Padilla (CA)

They have demanded that the Supreme Court “adopt more stringent and transparent ethics rules, as well as meaningful procedures to enforce those rules.” This is of great concern to the conservatives who refuse to recuse themselves from cases where they are recipients of bribery, especially Thomas. The letter states that “Fairness and impartiality are the core of the Constitution’s promise of an independent judiciary. The power of the federal judiciary comes from the public’s confidence that judges will rule honestly and with due respect to all those who enter the courtroom. When the public no longer trusts the courts to live up to these ideals, it undermines the pursuit of justice and disrupts the Constitution’s delicate balance of power. Nowhere in the federal judiciary is vigilance against even the appearance of impropriety more important than at the highest court in the land.”

For these reasons, the public’s plummeting confidence in the Supreme Court, and the Court’s unwillingness to address some of the roots of this distrust, are deeply worrying. Over the past two years, the public’s trust in the Court has decreased to historic lows. Despite these trends, the Supreme Court has consistently refused to adopt much-needed ethics reforms to address the allegations of misconduct that have no doubt contributed to the public’s waning confidence.

Two incidents from the last year alone demonstrate the pressing need for major ethics reforms at the Supreme Court. In one instance, a Supreme Court justice— possibly in violation of federal law— declined to recuse himself from cases implicating his spouse’s political activities. In another, allegations emerged of a 20-year, $30 million private lobbying campaign led by wealthy activists. These activists offered justices gifts to “embolden” the justices to write increasingly partisan opinions, and may have induced the leak of the Court’s decision in a 2014 case

The Supreme Court has responded to most of these serious allegations by ignoring them entirely. When the Court has addressed some of these allegations, it has incorrectly dismissed them as uncorroborated and refused to investigate further. More generally, justices and Court officials have said that ethics reforms are unnecessary because the justices “consult” the code of conduct that binds all other federal judges.5 These assurances do nothing to rectify misconduct that contravenes that code and that the Court has not investigated, much less addressed publicly.

Ethics reform at the Supreme Court has consistently enjoyed strong bipartisan support among legal academics, the American Bar Association, members of Congress, federal judges, and the public. Much-needed, good-governance reform at the Court would help root out misconduct and restore the public’s faith that the justices will live up to their oath to “administer justice without respect to persons,” to do “equal right to the poor and to the rich,” and to “faithfully and impartially discharge and perform all the duties incumbent” upon them as Justices of the Supreme Court of the United States.

The Supreme Court has the tools and authority it needs to develop and implement these changes, including adopting a code of conduct, creating fairer and more transparent recusal rules, and setting up procedures— based on longstanding procedures in the lower courts— to receive and investigate complaints of judicial misconduct. The only obstacle keeping the Court from adopting these reforms is the Court’s own unwillingness to see them through.

In the absence of such willingness, Congress has broad authority to compel the Supreme Court to institute these reforms, which would join other requirements already legislatively mandated.12 And Congress’s appropriations power is one tool for achieving these changes. During recent “interbranch disputes” between Congress and “a recalcitrant Executive Branch,” some courts have encouraged Congress to “withhold appropriations,” which can act as a “powerful incentive” for action within the executive branch.13 Nothing in the Constitution mandates that the judiciary be treated any differently when Congress is faced with judicial recalcitrance.14

Accordingly, we respectfully urge you to include the following language in the FY 2024 Financial Services and General Government Appropriations bill:

“Of these funds, $10 million cannot be obligated unless the Chief Justice notifies the Committee on Appropriations of both Houses of Congress that the Supreme Court has put into effect a public code of ethics for justices of the Court, including policies addressing, at a minimum, circumstances requiring disqualifications and recusals, the receipt and disposition of requests related to disqualifications and recusals, and the publication of such dispositions and the reasons therefor; and procedures, modeled after the procedures set forth in chapter 16 of title 28, United States Code, for receiving and investigating complaints alleging violations of such public code of ethics or other misconduct by justices of the Court.”

So far, no Republicans, who are usually adverse to ethics requirements, have signed on to the proposal, nor have notoriously corrupt members like Kyrsten Sinema and Joe Manchin. Meanwhile, AOC has called for Thomas to be impeached for his years of undisclosed bribe taking. "This is beyond party or partisanship. This degree of corruption is shocking-- almost cartoonish. Thomas must be impeached. Barring some dramatic change, this is what the Roberts court will be known for: rank corruption, erosion of democracy, and the stripping of human rights." Asked by David Sirota, she told The Lever that she thinks "this is an emergency. I think that this is a crisis. I think we've had a crisis for some time on the Supreme Court. And, you know, so to get to the heart of your question, Congress is out of session for the next week. And so that does give Democrats sometimes some time to strategize. And the way I feel about it is that I do think articles need to be introduced if we decide strategically that the actual author of those articles and who introduces them may not be me, that's fine. I will support impeachment. But I just think that if no one's going to introduce it, I would certainly be open to doing so and drafting them myself. I think this is gone far, far beyond any sort of acceptable standard in in any democracy, let alone an American democracy."