Sen. Whitehouse and Rep. Johnson Press SCOTUS About Apparent Ethical Lapses After New Outside Influence Scandal Emerges

Washington, D.C. – U.S. Senator Sheldon Whitehouse (D-RI) and Congressman Hank Johnson (D-GA-04), Chairmen of the Senate and House Judiciary Courts Subcommittees respectively, yesterday evening wrote to the Supreme Court calling for responses to questions about apparent ethical lapses related to an outside influence campaign targeting Republican-appointed justices that was exposed by recent reporting in Politico, Rolling Stone, and the New York Times.  A New York Times report from Saturday revealed how a right-wing religious group, Faith and Action, sought to sway the justices and was able to gain advance knowledge of the Court’s decision in a key case.  

On Saturday, the Chairmen released their previous correspondence with the Supreme Court about Faith and Action, and pledged to continue seeking answers and working to require the Court to adopt mandatory ethics rules in line with the other branches of the federal government.  Their new letter sent yesterday evening reiterates those calls and asks new questions of Chief Justice John Roberts and the Supreme Court’s legal counsel, including whether the allegations regarding Faith and Action have been investigated internally and whether the Court has reevaluated any of its procedures related to judicial ethics.

“Our previous letter identified reports of conduct by justices that increasingly appear out of line with the conduct permissible for other federal judges and, in some cases, may be inconsistent with federal law.  Recent reporting by the New York Times that the orchestrators of this judicial lobbying campaign may have used their access to certain justices to secure confidential information about pending cases only deepens our concerns about the lack of adequate ethical and legal guardrails at the Court,” Whitehouse and Johnson wrote last night.

In September, Whitehouse and Johnson sent a letter to Chief Justice Roberts requesting information about the operation, referred to as “Operation Higher Court,” orchestrated by Faith and Action to influence the justices.  In a response to the Chairmen earlier this month, legal counsel for the Court did not substantively address their questions and made no mention of Faith and Action.  That letter is available here.

According to the New York Times report, Chief Justice Roberts received a letter in July stating that Faith and Action had received inappropriate advance notice of the outcome in Burwell v. Hobby Lobby, but the Court did not acknowledge that information in its November response to Whitehouse and Johnson.

“Moreover, it appears that the Court was alerted to these allegations as early as July 2022, when Chief Justice Roberts received a letter from the former leader of this lobbying operation.   The Court was thus already aware of this information when it received our September 7, 2022 letter,” they wrote.

Earlier this year, Whitehouse and Johnson introduced the Supreme Court Ethics, Recusal, and Transparency Act to enact stronger recusal standards, require the Court to adopt a binding code of conduct, and mandate the Supreme Court adopt more robust rules governing disclosure of gifts and travel paid for by outside parties. The bill would also require disclosure of the identity of funders of amicus briefs, and block amicus filers from making gifts or providing travel to court of appeals judges or Supreme Court justices. 

The new letter is available here and below.

November 20, 2022

The Honorable John G. Roberts                                            

Chief Justice                                                                          

Supreme Court of the United States                                      

One First St. NE                                                                    

Washington, D.C.  20543                                                      

Ethan V. Torrey

Legal Counsel

Supreme Court of the United States

One First St. NE

Washington, D.C.  20543

Dear Chief Justice Roberts and Mr. Torrey:

We write to continue the inquiry initiated in our September 7, 2022, letter regarding the religious group Faith and Action’s decades-long, private judicial lobbying campaign known as “Operation Higher Court.”  Your reply letter, dated November 7, 2022, states that you “understand the policy questions raised by your letter to be whether the [Supreme] Court should adopt a separate code of conduct and whether the financial disclosure requirements in place for the federal judiciary are adequate.”  While these are indeed important questions in our inquiry, they are separate from our specific questions regarding factual inquiry into the justices’ conduct and whether that factual inquiry would show that the conduct violates ethical and financial disclosure rules.  A response pointing out the existence of rules is not responsive to questions about whether those rules were broken.

It seems that the underlying issue is the absence of a formal facility for complaint or investigation into possible ethics or reporting violations.  Congressional oversight and internal investigations initiated by the Court itself are, as a general matter, the only two avenues of investigating unethical conduct at the Court.  If the Court, as your letter suggests, is not willing to undertake fact-finding inquiries into possible ethics violations that leaves Congress as the only forum.

Our previous letter identified reports of conduct by justices that increasingly appear out of line with the conduct permissible for other federal judges and, in some cases, may be inconsistent with federal law.  Recent reporting by the New York Times that the orchestrators of this judicial lobbying campaign may have used their access to certain justices to secure confidential information about pending cases only deepens our concerns about the lack of adequate ethical and legal guardrails at the Court.[1]  Moreover, it appears that the Court was alerted to these allegations as early as July 2022, when Chief Justice Roberts received a letter from the former leader of this lobbying operation.[2]  The Court was thus already aware of this information when it received our September 7, 2022 letter.

Given the seriousness of these issues, we request that you provide responses to the specific questions included in our September 7, 2022, letter.  Furthermore, to assist our investigation into the new allegations reported by the Times, we ask that you please provide the following additional information:

1. Has the Supreme Court opened an investigation into any of the allegations set forth in our September 7, 2022, letter, the July 2022 letter from Reverend Robert Schenck to Chief Justice Roberts, or any other allegations contained in the relevant reporting from Rolling Stone, Politico, or the New York Times?  If so, please provide relevant details regarding the management of that investigation, including which individual and/or office is leading the investigation and how and on what date the investigation was launched.
2. Has the Court reevaluated any of its practices, procedures, or rules related to judicial ethics, or the justices’ receipt and reporting of gifts and travel, in light of the July 2022 letter from Reverend Robert Schenck to Chief Justice Roberts?
3. Who is responsible for policing the relationship between the Supreme Court and the Supreme Court Historical Society to ensure that paid membership in the Society is not used as a means of gaining undue influence?

It may assist the resolution of these issues if the Court were to designate an individual knowledgeable about them to provide testimony to us about the existence or not, and the nature if they exist, of any procedures that guide inquiry, investigation and determination of factual issues related to ethics or reporting questions raised about justices’ conduct.

Sincerely,