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All is not well at the U.S. Supreme Court. Justice Clarence Thomas is facing an intensifying ethics mess that neither he nor his allies have been able to explain away. Another one of his far-right allies, Justice Neil Gorsuch, is now facing a separate ethics controversy of his own.
Americans’ confidence in the high court, meanwhile, has reached depths unseen since the dawn of modern polling.
It was against this backdrop that Senate Judiciary Committee Chairman Dick Durbin invited Chief Justice Roberts to testify in early May about judicial ethics rules and potential reforms. As recently as a few days ago, the Illinois Democrat said he had not yet received a formal reply.
As NBC News reported, that changed late yesterday.
Chief Justice John Roberts on Tuesday declined an invitation from a high-ranking Democratic senator to testify at a congressional hearing on ethics rules for members of the Supreme Court. In a letter to Senate Judiciary Committee Chairman Dick Durbin, D-Ill., Roberts suggested that his participation could pose a threat to judicial independence.
“Testimony before the Senate Judiciary Committee by the Chief Justice of the United States is exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence,” Roberts wrote.
If the high court and its justices were functioning well, in a controversy-free environment, enjoying the respect and confidence of all, it’d be easier to understand Roberts’ reluctance to testify.
But therein lies the point: There’s a cloud hanging over the institution. The chief justice’s reluctance to talk about the problem won’t make the cloud blow away.
Indeed, my MSNBC colleague Jordan Rubin wrote a terrific assessment of Roberts’ letter to Durbin, describing it as “pathetic.”
The question at this point, of course, is what happens now.
On Capitol Hill, developments continue to unfold. Democratic Sen. Ed Markey of Massachusetts, for example, yesterday called on Thomas to resign, becoming the second senator to do so. Independent Sen. Angus King of Maine and Republican Sen. Lisa Murkowski of Alaska, meanwhile, will reportedly introduce legislation today that would require the U.S. Supreme Court to create its own code of conduct within a year.
“It’s pitiful that we’re having to introduce this bill—it’s pathetic that the Supreme Court hasn’t done this itself,” King told The Wall Street Journal.
As for Durbin, the Judiciary Committee chair could play hardball with Roberts. The Democrat sent a polite invitation, which the chief justice rejected. The next step could be a subpoena, though that would be a rather aggressive move.
When Thomas’ latest controversy came to public light two weeks ago, Durbin issued a statement describing the revelations as “a call to action,” adding, “[T]he Senate Judiciary Committee will act.”
We’ll soon see the degree to which he meant that.
Finally, it’s worth keeping one other possibility in mind. The chief justice, in theory, could quietly let Capitol Hill know about behind-the-scenes efforts in which Roberts is cracking down on his ethically challenged colleagues. In other words, it’s at least possible that the chief justice could effectively tell Durbin, “There’s no need for Congress to intervene; I’m taking care of this.”
The problem with this theory is that it’s almost certainly fantastical. It’s far more likely that Roberts, feeling accountable to no one, is simply waiting for the news cycle to change and for the political winds to blow in a different direction.