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The Senate holds its Supreme Court ethics hearing this week — with no justices

By: Rachel Treisman | NPR
Posted on: Monday, May 1, 2023

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WASHINGTON (NPR) — The Senate Judiciary Committee will hold a hearing on Supreme Court ethics reform on Tuesday, as questions continue to swirl about the business dealings of several justices.

And it will proceed even without participation from U.S. Chief Justice John Roberts, who declined to testify.

“Regardless of whether the chief justice shows up or not, the committee will go forward with our hearings with ethical experts to point out why it’s important for the Supreme Court to have such a code,” Democratic Sen. Mazie Hirono of Hawaii tells Morning Edition.

Last month a ProPublica investigation found that Justice Clarence Thomas didn’t disclose two decades of luxury vacations paid for by a wealthy Republican donor, who also bought real estate from him in Georgia.

And last week, Politico reported that Justice Neil Gorsuch didn’t disclose the identity of the person who bought property from him in Colorado — and turned out to be the head of a law firm that has multiple cases before the Supreme Court.

The Supreme Court doesn’t follow the ethics code that applies to other federal courts. Hirono says lawmakers had wanted to ask Roberts why that is, “so that he could explain to us.”

Since the judiciary is a coequal branch of government, Congress can’t compel it to adopt a new set of ethical guidelines. Still, some lawmakers hope to hold the Supreme Court to higher standards.

Lawmaker questions and proposals

Several bills, including one introduced in February and another last week, would require the court to adopt an ethical code of conduct and establish a mechanism for examining potential violations, though they are not likely to advance in a split Congress.

Tuesday’s hearing will examine what committee chair Sen. Dick Durbin, D.-Ill., has called “common sense proposals.”

Roberts declined Durbin’s invitation last week to testify before the committee, but submitted a joint statement from all nine justices reaffirming voluntary compliance with court “ethics, principles and practices.”

However, that document leaves it up to individual justices, “rather than the court, [to] decide recusal issues.”

Hirono says Roberts’ response amounts to “too little, too late.”

“They are the highest court in the land, they should be held to the highest ethical standards,” she says. “And that is why we are having a hearing, because that’s not where the court is.”

Hirono says “we don’t know” when the Supreme Court adopted the policies and practices in Roberts’ letter, adding “there are a lot of questions.”

Plus, a renewed focus on ‘judge shopping’

Roberts also noted in his letter that the Judicial Conference strengthened certain disclosure requirements, such as around free airplane trips and gifts from friends, just this year.

And he’s written about the need for other judicial reforms in the past, Hirono says.

“When Chief Justice Roberts made his end-of-year report in 2021, he noted that there were certain things that they shouldn’t be doing, such as judge shopping,” she adds. “So I think that he opened the door, and acknowledges that there need to be some changes in how the judiciary operates.”

Judge shopping is the practice whereby plaintiffs deliberately file lawsuits in districts overseen by judges who they know will be sympathetic to their side. The Texas lawsuit over the abortion drug mifepristone brought it under renewed scrutiny in recent weeks.

Last week Hirono introduced a bill aimed at stopping that practice by giving the U.S. District Court for the District of Columbia exclusive jurisdiction over “cases that would have national implications.”

The district court in D.C. hears a majority of cases involving challenges to federal agency action — it’s the only court that can hear certain immigration and campaign finance challenges, for example — and Hirono believes their expertise will help ensure decisions are based on the law, not the ideology of a single judge:

“So it would create a way that only the district court in D.C. will hear these cases, and will stop judge shopping in places like Texas, where 20 of the 27 divisions there [have] only one judge, which makes it really easy to judge shop.”

Simone Popperl edited the broadcast interview.