Roberts Memo Threatened To Challenge Ethics Rules

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Chief Justice John Roberts made headlines this week for refusing to participate in a Senate hearing on the corruption scandals engulfing the Supreme Court. In fact, The Lever has found that Roberts previously questioned whether Congress can impose ethics requirements on the high court at all — and he’s now punted any review of Clarence Thomas’ undisclosed luxury gifts to a little-known panel of secret judges. Read more from Andrew Perez and Julia Rock in today’s featured story below.

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Rock the boat.

Justice Clarence Thomas and Chief Justice John Roberts. (AP Photo/J. Scott Applewhite)

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A decade before Chief Justice John Roberts rejected a Senate request this week to testify about corruption scandals engulfing the Supreme Court, he threatened to challenge a congressional effort to ensure the high court’s justices abide by federal corruption laws, according to documents reviewed by The Lever.

Now, instead of spearheading an investigation into Justice Clarence Thomas’ undisclosed luxury gifts and real estate transactions, Roberts is punting to a little-known panel of lower court judges whose identities are secret, according to a spokesperson for the judiciary.

Roberts’ posture spotlights a crisis in America’s system of checks and balances: If the legislative and executive branches refuse to assert oversight authority over the nation’s highest court, Supreme Court justices can continue to operate with complete impunity.

For weeks now, Washington has been roiled with news that Thomas failed to disclose two decades’ worth of luxury trips provided by billionaire Republican mega-donor Harlan Crow, as well as the sale of property to Crow.

Despite public outcry, what’s happened in Washington in recent weeks suggests that little will come of calls to investigate Thomas.

Part of that is due to Democrats’ ineptitude. The Senate Judiciary Committee cannot subpoena Thomas due to the extended absence of Sen. Dianne Feinstein (D-Calif.), who is recovering from shingles. Feinstein, who has reportedly been suffering from significant memory issues for some time, is set to retire next year but has refused to depart the Senate early.

That has left Democrats begging the Supreme Court to investigate itself — which Roberts has suggested will not be happening.

Roberts made headlines on Tuesday for declining the Senate Judiciary Committee’s voluntary request to testify at a hearing on Supreme Court ethics. He also recently punted on Senate Democrats’ request for the Supreme Court to investigate Thomas, kicking it down to a judicial policymaking body stacked with Republican judges — which then passed the matter down further to a panel of secret judges to handle the matter.

At this point, Democrats appear to be counting on the panel of secret judges to refer Thomas to President Joe Biden’s attorney general, Merrick Garland, for prosecution.

The turn of events suggest that, despite a historic ethical cloud looming over the Supreme Court and a growing number of Americans losing faith in the institution, there will likely be no real reckoning over Thomas’ apparent improprieties.

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Multiple lawmakers have called for Thomas to be impeached, and Rep. Alexandria Ocasio-Cortez (D-N.Y.) told The Lever she was open to drafting articles of impeachment herself, but the effort is unlikely to advance in the Republican-held House of Representatives.

There remains a small glimmer of hope that Congress could pass new, bipartisan legislation to compel the Supreme Court to finally adopt an ethics code — but that, too, could ultimately set up an even bigger showdown with Roberts.

“Giving A Backbone To Justices Who Violated These Laws”

Roberts, appointed to the Supreme Court by President George Bush in 2005, has repeatedly declined to use his position as the head of the federal judiciary to improve compliance with federal ethics laws or impose a code of ethics on the highest court.

In 2011, numerous reports detailed ethical improprieties on the highest court, spurring congressional action. Justices Samuel Alito, Thomas, and the late Antonin Scalia had reportedly attended conservative fundraising and political strategy meetings. Thomas had failed to report his wife Ginni’s job with the Heritage Foundation for several years, and Crow was funding Ginni’s new Tea Party-themed dark money group.

In the wake of those revelations, then-Rep. Chris Murphy (D-Conn.) introduced legislation to impose a code of ethics upon the Supreme Court.

But in a little-noticed memo, Roberts lashed out at the effort, suggesting that Congress may not have the authority to conduct oversight of the Supreme Court or force its justices to report their finances or limit the gifts and outside earned income they can receive.

“Congress has directed justices and judges to comply with both financial reporting requirements and limitations on the receipt of gifts and outside earned income,” Roberts wrote in his 2011 year-end report. “The court has never addressed whether Congress may impose those requirements on the Supreme Court. The justices nevertheless comply with those provisions.”

He added, “As in the case of financial reporting and gift requirements, the limits of Congress’s power to require recusal have never been tested.”

Ethics experts read Roberts’ memo as a thinly-veiled threat.

“I thought when he said that it was utterly remarkable,” Amanda Frost, a judicial ethics expert and professor at University of Virginia Law School, told The Lever. “He was giving a backbone to justices who violated these laws.”

Frost said it was a warning to Congress: “‘Don’t even try to impose an ethics code because we will eventually say it is unconstitutional if we have to,’” she mused.

Murphy’s legislation didn’t go anywhere, at least in part because the Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) did not introduce a companion bill on the Senate side.

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Roberts continued to oppose any congressional effort to require the high court to comply with a code of ethics, while also refusing to institute one himself.

In 2012, Leahy and four other Democrats on the Senate Judiciary Committee sent Roberts a letter asking the Supreme Court to formally adopt the code of conduct to which the rest of the federal judiciary adheres.

“The court does not plan to adopt the code of conduct for United States judges through a formal resolution,” Roberts responded. He said Supreme Court justices would continue to voluntarily comply with the code’s rules on accepting and reporting gifts and outside income.

Then, when House Republicans proposed modest legislation in 2018 to require the Supreme Court to issue public notices of and explanations for recusals, and to stream oral arguments online, Roberts said he had “serious constitutional concerns” about the bill. A lobbying push by federal judges reportedly helped to ensure it never became law.

Yet when judges did violate federal ethics rules, Roberts appeared to do little to hold them to account. The Wall Street Journal reported in 2021 that 152 federal judges had seemingly violated recusal laws by ruling in at least 1,076 cases involving companies in which they had a financial interest between 2018.

Roberts responded in writing in his annual report, pointing out that federal judges still had a “99.97 percent compliance rate” with federal ethics laws despite the “lapses” the Wall Street Journal had pointed out. He called for better ethics training for judges and “​​greater attention to promoting a culture of compliance” with disclosure rules.

On Wednesday, Sens. Angus King (Ind.-Maine) and Lisa Murkowski (R-Alaska) announced they introduced a bill to force the Supreme Court to write a code of conduct for justices and make it public.

The legislation won praise from the court reform advocacy group Fix the Court, which noted that it’s “the Senate’s first-ever bipartisan bill to require the justices to write and adopt a formal code of conduct.”

The bill’s prospects for passage are uncertain, though. And even if it were to pass, it’s an open question as to whether the Roberts Supreme Court would respect such oversight from Congress.

“The List Is Not Public”

The Roberts Supreme Court is currently facing its biggest ethics scandal yet.

ProPublica recently reported that Clarence Thomas had failed to disclose two decades’ worth of trips on Crow’s private jet and superyacht. The news outlet subsequently reported that Thomas had also failed to report his sale of property, including his mother’s house, to Crow. We later learned Thomas’ mother is still living in the house rent free.

On Tuesday, Politico reported that Justice Neil Gorsuch had failed to disclose that he and two other individuals had sold property in Colorado to the CEO of Greenberg Traurig, a law firm that regularly represents parties before the Supreme Court.

It’s not clear who, if anyone, in Washington is planning to lead a serious investigation into these ethics matters.

Democrats on the Judiciary Committee cannot lead a real inquiry without Feinstein present, unless she chooses to resign — which appears unlikely. As a result, Senate Democrats have been stuck effectively begging Roberts to investigate Thomas and to voluntarily submit to a hearing on ethics at the Supreme Court.

On Tuesday, Roberts blew off that voluntary request, arguing that it would raise “separation-of-powers concerns.”

Roberts similarly rebuffed Senate Democrats’ request that the Supreme Court investigate Thomas’ ethical lapses. He punted their complaint to the U.S. Judicial Conference, a judicial policymaking body that is dominated by Republican-appointed judges, according to a Lever review.

While the Judicial Conference has the power to refer judges to the Attorney General for ethics violations, the conference instead kicked the complaint down further to its Committee on Financial Disclosure.

That committee is chaired by David Bunning, a district court judge in Kentucky who was appointed by President George W. Bush. The rest of the committee’s members have not been made public.

Bunning’s office declined to comment on the Judicial Conference’s referral, directing questions to Jackie Koszczuk, a spokesperson for the Administrative Office of the U.S. Courts.

Koszczuk, for her part, declined to name the judges who are serving on the Judicial Conference’s committee on financial disclosure, telling The Lever, “The list is not public.”

Fix the Court, the court reform advocacy group, provided The Lever with its own internal list of judges that it believes are on the Judicial Conference’s financial disclosure committee — a list that includes eight Democratic appointees, six Republican appointees, and two judges who were appointed by other judges.

Koszczuk declined to verify the list from Fix the Court.

Sen. Sheldon Whitehouse (D-R.I.) blasted the judiciary for refusing to name who is now handling its review of Thomas’ ethical improprieties.

“The Judicial Conference is a publicly funded entity and the judges who sit on its Financial Disclosure Committee do so in their capacities as public servants,” Whitehouse said in a statement to The Lever. “Taxpayers have a right to know who they are paying to make important decisions about whether a Supreme Court justice may have broken the law.”

Whitehouse additionally sent a letter to the Judicial Conference requesting more information about how the conference and its financial disclosure committee handle potential ethics violations and determine whether to refer judges to the attorney general.

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