Chief Justice of the Supreme Court John Roberts, left (AP Photo/Matt Rourke); Sen. Dick Durbin (D-Ill), right (AP Photo/J. Scott Applewhite).
Ethics concerns over undisclosed trips taken by Supreme Court Justice Clarence Thomas and his wife Ginni Thomas have now evolved into something of a war of words between Senate Judiciary Committee Chair Dick Durbin (D-Ill.) and Chief Justice John Roberts.
In a statement Tuesday, Durbin slammed Roberts for refusing to appear before the committee and actively participate in Supreme Court ethics reform, particularly in light of recent revelations about “one Justice” who failed to disclose luxury travel and lucrative real estate deals with links to a high-level Republican donor.
In early April, Thomas and his political activist wife were outed for having enjoyed decades of undisclosed luxury trips around the world aboard the “superyacht” of billionaire GOP supporter Harlan Crow. Crow issued a formal statement denying that any of the trips had been illegal and explaining that he and the Thomases were simply “very dear friends” to whom he had extended unsolicited and unremarkable “hospitality.”
In light of these revelations, Durbin invited Roberts — or another justice designated by the Chief Justice — to appear before the Senate Judiciary Committee on May 2, 2023 to testify about Supreme Court ethics reform.
In a letter to Roberts Thursday, Durbin was clear about the purpose of the scheduled hearing.
“Your last significant discussion of how Supreme Court Justices address ethical issues was presented in your 2011 Year-End Report on the Federal Judiciary,” Durbin wrote. “Since then, there has been a steady stream of revelations regarding Justices falling short of the ethical standards expected of other federal judges and, indeed, of public servants generally.”
Durbin commented that ethical problems at the nation’s highest court “were already apparent back in 2011,” and blamed the Court itself for contributing to “a crisis of public confidence” in the institution by failing to address the matter.
“The time has come for a new public conversation on ways to restore confidence in the Court’s ethical standards,” Durbin wrote. “I invite you to join it, and I look forward to your response.”
In a response letter Tuesday, Roberts “respectfully declined” Durbin’s request, recounting the brief history of chief justices testifying before congressional committees.
“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,” Thomas wrote. He said that only two chief justices have appeared before the Senate Judiciary Committee: Chief Justice William Howard Taft in 1921 and Chief Justice Charles Evans Hughes in 1935.
Roberts noted that both gave testimony about “routine matters of judicial administration.” The Chief Justice also wrote that his predecessor, Chief Justice William Rehnquist, appeared twice before other House committees, but also spoke merely on “mundane matters.” Roberts made no mention of Durbin’s suggestion that the chief justice send another justice in his place to testify.
To provide further context about his “separation of powers concerns,” Roberts noted that no president has ever testified before the Senate Judiciary Committee, and only three presidents have ever testified before any congressional committee whatsoever. Roberts assured Durbin that all current members of the Supreme Court subscribe to written principles of ethics, and attached a three-page document signed by all nine justices outlining their commitment to ethical standards.
In a statement on Wednesday, Durbin responded to Roberts’ rejection with strong language and a pledge that the committee will not be deterred.
Durbin said that the Senate Judiciary Committee will proceed with the May 2 hearing, during which it will review “common sense proposals to hold Supreme Court justices to, at minimum, the same ethical standards and baseline level of accountability that bind the rest of the federal judiciary and the executive and legislative branches.”
“Make no mistake: Supreme Court ethics reform must happen whether the Court participates in the process or not,” Durbin added.
He then went a step farther and called out Roberts for not addressing the recent allegations against Thomas:
I am surprised that the Chief Justice’s recounting of existing legal standards of ethics suggests current law is adequate and ignores the obvious. The actions of one Justice, including trips on yachts and private jets, were not reported to the public. That same Justice failed to disclose the sale of properties he partly owned to a party with interests before the Supreme Court.
Although Durbin did not mention his name, the reference to “trips on yachts and private jets” as well as “sale of properties” were clear references to Clarence Thomas.
Roberts is not the only sitting justice who has expressed serious concerns over diminished public confidence in the Supreme Court. In the immediate aftermath of the Court’s leaked draft decision in Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade and rolled back abortion rights, Justice Elena Kagan said that “[i]f, over time, the court loses all connection with the public and with public sentiment, that is a dangerous thing for democracy.”
At the time, Justice Samuel Alito appears to have responded to Kagan’s expression of concern by criticizing that she expressed her concern at all.
“[S]aying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line,” Alito commented to the Wall Street Journal.
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