Supreme Court Ethics Bill is Unethical

July 27, 2023 | Washington, D.C.

by Eagle Forum Executive Director, Tabitha Walter

Senate Supreme Court Ethics Bill Places Conservative Justices in Democrats’ Crosshairs

In yet another attempt to delegitimatize the Supreme Court, Senate Democrats have moved forward with a bill they say would tighten ethics requirements for its Justices. The Supreme Court Ethics, Recusal, and Transparency “SCERT” Act (S. 359) is not intended to hold those serving on the Court accountable for their actions or to close some nefarious loophole.

In the words of Carrie Severino writing in National Review, “The legislation builds on the torrent of pseudo-ethics issues designed to destroy a Supreme Court whose recent decisions the Left finds disagreeable. The hand-wringing over ethics on Capitol Hill transparently employs double standards to single out conservative justices and ignore the liberal ones, fueled by incompetent journalism that fudges facts and routinely fails to find a single case in which one of its targets was corrupted.”

Democrats have relentlessly attacked the conservative Justices of the Supreme Court since they were nominated. Perhaps the most frequent criticisms have been targeted toward Justice Clarence Thomas. From his wife’s personal and professional dealings to his interactions with friends, every aspect of Justice Thomas’s life has come under scrutiny.  

One of the more recent made-up scandals has involved Justice Thomas’s financial reports. A liberal news outlet, ProPublica, released a hit piece against him highlighting his friendship with billionaire Harlan Crow and the trips the Thomases and Crows have taken together. Much debate has ensued about whether these instances should have been disclosed on Justice Thomas’s financial reports. In fact, the Ethics and Government Act of 1978 makes an exception for “personal hospitality” as it pertains to lodging, food, and entertainment. In 2011, these very same allegations were brought to the Judicial Conference (the governing body to implement the federal ethics law for the judiciary) by 20 liberal Congressmen and two outside advocacy groups, and the Judicial Conference found there was no evidence of an ethical problem.

But the truth matters little to those who seek to destroy the justices who uphold the Constitution. Other outlets are echoing the radical misinformation. The New York Times claims that “elites” have special access to the Supreme Court because of Justice Thomas’s membership with the Horatio Alger Association, a scholarship and mentor organization for individuals who come from low-socioeconomic backgrounds. No matter how ridiculous the accusation, the left is hoping that this drip of lies will eventually push Justice Thomas and his fellow originalists off the Supreme Court.

Meanwhile, the left-leaning Justice’s records remain unexamined by the leftwing media. For example, rather than recuse herself, the late Justice Ruth Bader Ginsberg issued a ruling in favor of her husband’s law firm’s client in a 2007 patent-related case.  She also accepted the Eleanor Roosevelt Award from the National Women’s Democrat Club among other problematic behaviors. Justice Sonia Sotomayor used her position of power to bully libraries and universities to purchase her book. The hypocrisy is outstanding.

In March of this year, the Supreme Court decided to tighten its ethics rules on its own. Now, all federal judges must disclose free stays at commercial properties or if a third party pays for accommodations. While this is a reasonable requirement, the left really wants political retaliation They are seeking to reduce the size of the so-called conservative majority on the Court since their plan to pack the Court with more liberals is losing steam.

The Senate Judiciary Committee passed the SCERT Act solely along party lines. The bill gets rid of the “personal hospitality” exemption and requires Justices to provide a written explanation of rescuing oneself from a case.

The most dangerous language of the bill, however, allows any individual to issue a complaint against a Justice which must be investigated by a panel of five federal judges. This means that any person who is unhappy with the makeup or decisions of the Court could file numerous complaints and tie up the Supreme Court’s caseload. Fortunately, the Senate is unlikely to gain the nine Republican votes needed to pass it through the full Senate.

While Democrats want to tout this as a “code of conduct,” it actually opens up the Supreme Court to abuse. Thomas Dupree, a former principal deputy attorney general under Attorney General Michael Mukasey, testified to the Senate Judiciary Committee:

Adopting these measures would open the door to a tidal wave of disqualification motions in virtually every important case. Round One in all the big-ticket constitutional cases would be litigation over which Justices are eligible to decide the case, and which Justices must be disqualified. Here too, it is hard to imagine anything more corrosive to public faith in the Supreme Court than what would become routine volleys of motions alleging that various Justices are ethically compromised and must recuse because they accepted a meal from someone distantly connected to a case.

He went on to say, “This is an extraordinary mandate that infringes on the separation of powers — a bedrock principle that underpins our constitutional democracy. Our founders well understood the importance of separating the legislative branch from the judicial branch… Ordering the Justices to adopt a Code of Conduct offends the separation of powers. The bill intrudes upon the core function of a coordinate and co-equal branch of government.”

Fortunately, the Senate is unlikely to gain the nine Republican votes needed to pass it through the full Senate.  As Senator Lindsey Graham said, the bill “is an assault on the Court itself.”