WASHINGTON (CN) — Senate Democrats on Saturday published a new report rolling up more than a year of investigation into the Supreme Court, detailing what lawmakers said were a “consistent stream of ethical lapses” by the justices and the repeated failure of court leadership to address them.
But despite the report’s findings — and the 20 months of congressional probing which contributed to them — Democrats are set to give up their majority in the upper chamber without passing any major legislation aimed at addressing what they have long framed as the court’s ethical crisis.
The Senate Judiciary Committee, under the leadership of Senate Majority Whip Dick Durbin, has since last spring investigated reports that several Supreme Court justices, including Justice Clarence Thomas and Justice Samuel Alito, failed to report lavish vacations and other gifts on their annual financial disclosures. Some of the undisclosed gifts were paid for by prominent conservative figures, some of whom later had business before the high court.
And in Saturday’s report, obtained by Courthouse News, the Judiciary Committee Democrats summarized their findings from the yearlong probe.
The survey, which offered little new information from the panel’s investigation, repeated a claim that has become a refrain among Democrats: that influential people have sought to gain private access to Supreme Court justices using gifts and other hospitality.
The report referenced several court benefactors who have been previously named, such as billionaire real estate developers Harlan Crow and Robin Arkley. But it dialed in on Federalist Society cofounder Leonard Leo, who the report said has “made a career” of advancing conservative interests by facilitating access to the justices.
“For decades, Leonard Leo has connected conservative attorneys and activists with Republican-appointed justices and their families in an apparent effort to advance conservative causes,” Democrats wrote. In recent years, Leo has sent money to organizations led by Thomas’ wife, Ginni, and has helped set up trips with Alito and other justices, they added.
The report also rehashed conclusions about the justices themselves, saying among other things, that Thomas violated federal law by failing to disclose travel and other expenses bankrolled by Crow. The justice, the report added, neglected to report further gifts from the conservative megadonor that were later unearthed by the Judiciary Committee.
Democrats similarly found that Alito had misused a loophole in federal financial disclosure guidelines allowing justices to leave off “personal hospitality” expenses. The justice leveraged that exemption to conceal a 2008 fishing trip to Alaska, during which Alito reportedly traveled on a private jet owned by Leo.
Before Alito, the report said, the so-called “personal hospitality exemption” was abused by the late Justice Antonin Scalia, who Democrats said accepted gifts from billionaires and other benefactors for more than a decade without disclosing them. Scalia, who died in 2016, went on “hundreds” of trips paid for by Republican donors and politicians, the report found, which he “obfuscated” by only reporting portions of the trips related to his duties.
The report further restated longstanding complaints from lawmakers that Alito created the appearance of impropriety when he sat for an interview with David B. Rivkin, a Washington-based lawyer who would later have business before the court. In the interview, published by the Wall Street Journal in August 2023, the justice slammed Congress for its efforts to regulate ethics at the Supreme Court.
Democrats on Saturday also pointed to reports that two flags bearing symbols related to the “Stop the Steal” movement flew outside homes belonging to Alito following the Jan. 6, 2021, Capitol riot.
“Despite the appearance of impropriety, Justice Alito refused to recuse himself from cases concerning the 2020 election and January 6 and the case involving the attorney who interviewed him,” the report said.
Alito has maintained that the flag displays — an upside-down American flag and an “Appeal to Heaven” flag — were put up by his wife.
As for what Congress should do about the ethical malfeasance on the Supreme Court, Democrats broke little new ground with the recommendations made in Saturday’s report. And the survey offered few examples of successful steps lawmakers have made over the last year or so in addressing the issue.
Judiciary Democrats once again made their oft-repeated argument that the justices need to adopt an enforceable code of ethical standards.
It’s a conversation that the court appears to consider addressed. Chief Justice John Roberts late last year unveiled a new ethics code for the Supreme Court — until then, the justices had no formal ethics standards, just a statement of practices signed by all nine. But, despite the move to establish such a code, lawmakers and judicial experts have long pointed out that the new standards lacked a clear enforcement mechanism.
Democrats in Congress, led by Rhode Island Senator Sheldon Whitehouse, championed legislation this year to mandate the Supreme Court adopt an enforceable code of conduct. Known as the Supreme Court Ethics, Recusal and Transparency, or SCERT, Act, the measure would have not only forced the court to draft a new ethics code but would have ensured such a process happened in the public eye.
Whitehouse’s bill also would have established a mechanism for demanding that justices recuse from cases in which they may have conflict of interest and would have set up a panel of lower court judges to adjudicate ethics complaints against the high court.
But Senate Republicans, furious about what they saw as an effort by Democrats to discredit the Supreme Court’s conservative majority, raged against Whitehouse’s bill. Though the measure passed out of the Judiciary Committee over the summer, it later failed on the Senate floor after GOP lawmakers blocked it on procedural grounds.
Saturday’s report also pointed to Judiciary Democrats’ gambit to issue subpoenas to Crow, Arkley and Leo for information related to their financial relationships with the justices. Though the committee did authorize a subpoena for Leo in a meeting which saw the panel’s entire Republican contingent walk out in protest, it never voted on similar legal summonses for the other two men.
Democrats have said that they reached agreements with Crow and Arkley for limited tranches of information. Their deal with Crow yielded new information about undisclosed flights with Thomas.
But Leo has refused to comply with the subpoena against him, slamming it as illegitimate and arguing that Democrats lack the authority to enforce it. Lawmakers have not undertaken any effort to force his compliance.
The report noted that Leo is “currently in noncompliance with a valid congressional subpoena,” adding that the information he is required to provide is necessary for developing a legislative strategy for addressing ethics issues at the Supreme Court.
The Judiciary report further recommended additional investigative steps to continue unpacking the court’s malfeasance, arguing that some of lawmakers’ questions can only be answered by the justices themselves. Democrats said that Congress may need to seek testimony from Chief Justice Roberts, who has so far refused such overtures.
But in spite of these recommendations, Democrats will likely not get a chance to continue their probe for several years. Republicans are set to take the Senate majority in January, and top lawmakers have signaled that the change in leadership means the end of the Supreme Court ethics push.
During a news conference following November’s election, outgoing Senate Minority Leader Mitch McConnell said one of the most “gratifying” things about a GOP Senate majority was that the chamber would stop “beating up the Supreme Court every time we don’t like a decision they make.”
Democrats, meanwhile, have said that their court reform effort raised the issue’s profile among the average American — even if it didn’t bear fruit this time around.
“[T]he public is now far more aware of the extent of the largesse certain justices have received and how these justices and billionaire benefactors continue to act with impunity,” Saturday’s report said.
Durbin, in a statement accompanying the survey, again argued that Congress should push for a “legislative solution” to the Supreme Court ethics crisis, as long as Roberts and the justices do not take matters into their own hands.
“Whether failing to disclose lavish gifts or failing to recuse from cases with apparent conflicts of interest, it’s clear that the justices are losing the trust of the American people at the hands of a gaggle of fawning billionaires,” Durbin said. “The highest court in the land can’t have the lowest ethical standards.”