Senate Judiciary Democrats announced they’ll vote on subpoenaing Republicans behind some of the latest Supreme Court ethics scandals. It’s good they’re finally moving toward that commonsense step to deal with the compliance refusals of conservative activist Leonard Leo and wealthy GOP donors Harlan Crow and Robin Arkley II.
In doing so, the accountability move underscores how easily the justices could get the committee off their backs, according to the announcement on Monday. Senate Judiciary Chairman Dick Durbin, D-Ill., and committee member Sheldon Whitehouse, D-R.I., said Chief Justice John Roberts “could fix this problem today and adopt a binding code of conduct. As long as he refuses to act, the Judiciary Committee will.”
It’s all the more puzzling, then, that the court hasn’t adopted even a superficially binding code. Recall that, earlier this month, Donald Trump-appointed Justice Amy Coney Barrett said it would be a “good idea” if the court had a code. And though it’s unclear what’s holding one up, it wouldn’t be surprising if the justices at the center of these scandals — Clarence Thomas and, to a lesser extent, Samuel Alito — are playing a part.
At any rate, if the court cobbles a code together, that mere fact shouldn’t end the ethics inquiries the committee has seen fit to raise. Rather, one question at that point would be whether the code has legitimate investigative and enforcement mechanisms that truly bind its purported subjects. Roberts and his colleagues likely understand the simple passage of a code wouldn’t end scrutiny of them by a co-equal branch of government or the public at large — nor should it.
Subscribe to the Deadline: Legal Blog newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.