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The liberal justices shouldn’t let Clarence Thomas off the hook

Justices Ketanji Brown Jackson, Sonia Sotomayor and Elena Kagan are letting their love of the Supreme Court blind them to its problems.

Chief Justice John Roberts was a no-show at Tuesday’s hearing of the Senate Judiciary Committee on potential Supreme Court ethics reform. Nor were any of the eight other justices present. None of this was a surprise, as Roberts declined the invitation from committee chair Dick Durbin, D-Ill., in writing last week.

In that letter, Roberts cited the separation of powers as barring his attendance but attached a “Statement on Ethics Principles and Practices” that all nine justices had signed. Ranking member Lindsey Graham, R-S.C., framed this on Tuesday as the justices all agreeing fully with the content of Roberts’ letter and rejecting the idea that congressional oversight was at all appropriate. This is at best a stretch of what Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson intended with their signatures; at worst, it is a sign that even the three “liberal” justices are willing to place the Supreme Court’s consolidation of power above any ideological disagreements with their colleagues.

As former federal judge Jeremy Fogel rightly pointed out in his testimony, two concurrent discussions were going on during Tuesday’s hearing. The first, which he was keen to participate in, dealt with how the Supreme Court could be more transparent and open about the ethical standards it follows and how those standards could be enforced. The other was almost entirely about the politics surrounding the recent revelations about Justice Clarence Thomas’ major ethical lapses and the lesser offenses by other conservative members of the court.

The committee’s Democrats, to their credit, used the latter issue as a launching point to highlight the necessity of the former. The committee’s Republicans, on the other hand, spent almost all of their time either counterattacking liberal criticisms of Thomas, pointing out times liberal justices like Jackson needed to file corrections to their financial disclosures or otherwise denouncing the hearing as a partisan hit job, frequently citing Thomas’ claim that his 1991 confirmation hearing was a “high-tech lynching.”

It was the GOP’s witnesses, not the elected officials, who offered the most salient rebuttals of proposed legislation to force the Supreme Court to adopt a code of conduct. Like Roberts, they argued that it would be unconstitutional for one branch of government, in this case Congress, to dictate the internal workings of another, the Supreme Court. Any bill that would force such changes would thus be an assault on the independence of the court.

But it’s a false distinction to say that the Supreme Court and Congress are completely separate. James Madison himself wrote in Federalist 47 that each branch “must have partial control over others,” University of Virginia law professor Amanda Frost testified. Meanwhile, the Constitution established the Supreme Court as a separate branch in Article III, but it left the structure and workings of the court up to Congress to establish, which it did in the Judiciary Act of 1789. Frost agreed with the rest of the panel that it would be better for the Supreme Court to set up its own formal methods for dealing with potential ethical lapses. And yes, protecting the “decisional independence” of the justices is paramount, ensuring that they are never punished for a decision — but barring that, Frost argued, it is fully within Congress’ power to regulate the administrative aspects of the court.

More broadly speaking, the refusal of Congress to treat the Supreme Court as an equal that could be dealt with directly rather than deferring to it on every level would have been anathema to the founders. It was darkly funny that Sen. John Kennedy, R-La., referred to the Democrats’ concern about ethics as a “federal power grab.” The reality is that the court’s conservative supermajority has in recent years “taken significant, simultaneous steps to restrict the power of Congress, the administrative state, the states, and the lower federal courts,” as Stanford Law professor Mark Lemley argued in the Harvard Law Review last year. Saying that the justices should be more open about whom they’ve gotten money from and open to complaints to that effect doesn’t countermand the growth of the “imperial Supreme Court,” as Lemley dubbed it.

The refusal of Congress to treat the Supreme Court as an equal that could be dealt with directly rather than deferring to it on every level would have been anathema to the founders.

Unlike, say, Justice Samuel Alito, the three liberal women of the court have been quiet during the debate over ethics reform. Kagan agreed at a 2019 House Appropriations subcommittee hearing that the court should have a formal code of conduct, but those talks have reportedly stalled out. We also don’t know whether Roberts ever actually extended Durbin’s invitation to testify to any of them, but we can assume given their lack of outreach to the committee that they agreed with his declination.

The sad irony is that in their silence Kagan, Sotomayor and Jackson are acting more in concert with the founders’ intentions than any of the Republicans attending Tuesday’s hearing. The overwhelming presumption among the framers of the Constitution was that each of the spheres of power would act in its own interest and in doing so prevent the two others from gaining total dominance. Or, as Madison put it in Federalist 51, “ambition must counteract ambition.”

It should be common sense, then, that members of Congress would act to counter the Supreme Court, as it should counter the White House, as well. Once again, though, we see how the rise of hyperpartisan political parties has blown a hole in that theory. Rather than act to protect the prerogatives of Congress writ large, Republicans like Graham and Kennedy view the conservative members of the court, not their fellow senators, as their real allies.

If Kagan, Sotomayor and Jackson truly believe that it is only the Supreme Court that has the ability to govern itself, then they need to be more forceful in putting that self-regulation into practice. They need to be willing to tell Congress if, as it appears from the outside, there is no effective way for that to happen. And they need to be willing to speak out about whether they believe Thomas violated the ethics code that they have now signed onto. For now, the three of them are standing with their own faction in a way that only hurts the court in the long term.