Dems start Round One in Supreme Court ethics 'boxing match'

Senate Democrats want to keep conservative Supreme Court justices’ ties to GOP donors — and its rightward bent overall — in the public spotlight.

The Judiciary Committee will advance legislation Thursday that would impose an ethics code on the nation's highest court for the first time in history. It's one of Congress' biggest moves so far in response to a nationwide debate about judicial impropriety that’s captured outsized attention this summer.

The Democratic proposal won't become law anytime soon. But when it comes to influencing Washington's judicial wars, that's not the point.

Top Democrats’ decision to push ahead on the bill during the high court’s off-season is designed to keep reminding voters about the conservative court’s more polarizing recent opinions, from last year's reversal of Roe v. Wade to a more recent limit on LGBTQ protections. That's not to mention reporting on ethical entanglements by Justices Clarence Thomas and Samuel Alito that has commanded the attention of the party's liberal base.

The strategy will bolster Democrats' message heading into 2024. And it’s a sign that Democrats think the long-term political fight over the high court will ultimately shake out in their favor.

“Think of a boxing match. If you don’t fight the first round, you can’t win the match,” said Sen. Sheldon Whitehouse (D-R.I.), the lead sponsor of the ethics bill.

The Democratic slugfest is borne from frustration over former President Donald Trump's appointment of three conservative justices, tipping the balance of the court rightward. Recent ProPublica reporting about Thomas and Alito's relationships with GOP donors heightened Democrats' focus on judicial ethics and revived intra-party talk of a potential court expansion as they anticipate years of more conservative decisions.

What both parties acknowledge is that the Whitehouse legislation won't advance far in Congress, given the thin Senate Democratic majority and GOP-controlled House. Given that reality, Senate Republicans see Thursday’s committee vote as more about vilifying the court and setting the table for an expansion push than it is about getting a legislative result.

“It’s showboating,” Sen. John Cornyn (R-Texas) said. “If the Supreme Court was handing out decisions that the left agreed with, they'd be the happiest campers in town. But because they're handing down decisions that they don't agree with, they want to discredit the judiciary, and the Supreme Court.”

Whitehouse's plan would require the high court to set up stricter rules for justices to recuse themselves from cases as well as create a new board to investigate connections between justices and those arguing before the court. The bill also would require a new code of conduct for justices to be published and implemented within 180 days.

Top Democrats are currently debating whether to bring up the legislation on the Senate floor after it passes the Judiciary Committee. Majority Leader Chuck Schumer (D-N.Y.) called it “important” in a brief interview, but he is unlikely to bring it to the floor without buy-in from all the members of his 51-seat majority. There’s little sense in dividing his members if he can avoid it.

And the Democratic votes aren’t fully locked in yet, particularly from red- and purple-state members up for reelection next year.

Sen. Joe Manchin (D-W.Va.) said “there’s something that needs to be done” and he would consider supporting the bill, though he added that Congress needs ethics reform as well. Sen. Jon Tester (D-Mont.) said he’d like “at minimum” for the high court to “have the same ethics rules as the Senate,” where there is strict guidance on members' receipt of gifts. The vote of Arizona Independent Sen. Kyrsten Sinema is also a question mark.

But Sen. Chris Coons (D-Del.) said it is his “strong expectation” that the caucus would stick together to back the ethics bill. Judiciary Chair Dick Durbin (D-Ill.) is pushing for a floor vote and working closely with Whitehouse to steer the measure through his closely divided panel. Durbin said his committee will also vote on amendments to the legislation on Thursday.

Senate Republicans will oppose the bill in committee and almost certainly filibuster it on the floor, arguing that the court should sort out its own business and saying that the push is a political attack on a court that now holds a strong conservative majority. Republicans allege that Democrats are seeking retaliation for rulings that they despise, particularly the reversal of Roe.

“They'd like very much to see if they couldn't get more support for packing the court and diminishing the kind of public support that the court has,” said Sen. Mitt Romney (R-Utah). “And this is part of that effort.”

Democrats insist that their relentless focus on court ethics is nonpartisan, given that all justices would be subject to the bill's reforms. Recent reports that liberal Justice Sotomayor’s taxpayer-funded staff tried to boost her book sales creates a record of ethical missteps on both sides of the court — even garnering a critical mention on the floor from Durbin on Wednesday.

Republicans still see the legislation as a serious overstep into the business of a separate branch of government. Romney called Chief Justice John Roberts “a person of extraordinary integrity. I trust him and the court to manage their own ethics.”

Durbin was previously reluctant to act on legislation imposing ethics rules on the court. Instead he had urged Roberts to take steps in response to the cascade of disclosures of luxury travel, book sale entanglements and connections between justices and lawyers who argue before the court — revelations that affect more than two justices.

But Durbin's thinking shifted after Roberts rejected the Judiciary chair's invitation to testify before the panel earlier this spring. The chief justice's lack of significant action on ethics changes before the recent end of the court's term only further convinced Durbin the Senate needed to act.

“It is impossible to defend what currently is the situation on the Supreme Court. We should not have such a critically important branch of argument about the law when it comes to ethics,” Durbin said.