Washington, DC – Today, Senator Sheldon Whitehouse (D-RI), Chairman of the Senate Judiciary Courts Subcommittee, delivered opening remarks during a Senate Judiciary Committee markup of his comprehensive Supreme Court Ethics, Recusal, and Transparency (SCERT) Act.
Whitehouse’s SCERT Act 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. The legislation is expected to be voted on by the full Committee today.
Text of Whitehouse’s as-delivered opening statement is below, and video of the remarks can be found here.
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Thank you. Let me start by thanking Chairman Durbin for this mark up of our Supreme Court Ethics, Recusal, and Transparency Act, and the rest of my democratic colleagues for cosponsoring it. This bill would directly address some of the already disclosed misconduct we’ve seen at the Supreme Court recently. Comprehensive judicial ethics legislation is overdue, but it’s worth remembering how we got to today’s markup.
Let me first be candid about my belief that the Supreme Court has been captured by special interests, much like a railroad commission in the 1890s might have been captured by railroad barons to decide things their way.
I knew ethics were haywire at the Supreme Court when I determined that Justice Scalia had taken many dozens of unreported freebie vacations, often with political companions. His theory evidently was that a personal invitation from a resort owner he’d never met made the free vacation the sort of “personal hospitality” that did not need to be reported under federal law.
That is of course ridiculous, and when I got this notion before the Judicial Conference, they shot it down in flames — the verdict of their fellow judges. Other justices had witnessed this behavior over decades but did nothing about it, other than in some cases to copy it.
Then came the flotillas of coordinated front-group amici who showed up at the Court. Some amici have been paid by parties; others have masked special interests out to influence the law.
There is a disclosure rule for all of this, but its enforcement is a failure. Here’s an appendix I filed showing who was behind one case’s flotilla of front groups. The biggest flotilla, no surprise, appeared in the Bonta dark money case, supporting a corporate appendage of the Koch Brothers’ main political dark-money battleship, Americans For Prosperity. I counted fifty-five. Fifty-five.
And these right-wing front groups have a statistically staggering record of certain justices ruling their way.
Then came Justice Thomas in the January 6 cases. The lawfulness or unlawfulness of his failure to recuse depends on simple facts: what he knew about his wife’s insurrection activities and when he knew it. To this day, the Court has engaged in zero effort to make that factual determination; worse, it has no means to — it is the only Court in the country (and perhaps the only Court in the world) with no ethics process at all.
Then came the news that six — six — politically-active right-wing billionaires have been paying household expenses, engaging in financial transactions, and providing massive secret gifts of travel and hospitality for at least two justices.
Not one person on this committee could or would accept such a bonanza, let alone keep it secret. Nor would executive branch officials. Nor would any other federal judge. And that’s before you throw in the repeated companionship of the justices on these travels with the operative at the heart of the Court-capture scheme.
Yet the Supreme Court remains supremely idle.
Last two points. One, the judiciary has a process for resolving ethics questions and giving ethics advice; the justices seem uniquely to refuse to follow it, for instance asking random colleagues and friends about financial disclosure obligations instead of asking the actual Financial Disclosure Committee of the Judicial Conference that is there for that purpose.
And the excuses when they’re caught have been laughable, for instance that they don’t need to disclose these junkets because a private jet airplane is a “facility,” and that traveling on that private jet airplane is not travel but is “food, lodging or entertainment.”
Remember as we debate this: the Court’s financial disclosure requirements are a law, passed by Congress; its recusal requirements are a law, passed by Congress; and the body that implements financial disclosure and code of conduct issues is the Judicial Conference, a body created by Congress. Please let’s not pretend Congress can’t make amendments to laws Congress has passed, or oversee agencies Congress has created.
For decades the justices themselves have never objected to, and have actually, repeatedly and without complaint, complied with this structure, so even the Court has demonstrated it doesn’t believe that canard.
We are here because the highest Court in the land has the lowest standards of ethics anywhere in the federal government; and justices have exhibited much improper behavior, not least in hapless efforts to excuse the misdeeds. This cannot go on. Defending this behavior defends the indefensible.
Meaghan McCabe, (202) 224-2921
