Senate Dems' report on SCOTUS ethics inquiry decries "culture of misconduct"

Judiciary Dems' majority staff report calls for Congress to act given that "the justices have allowed ethical misconduct to persist for decades."

For the past 20 months, the Senate Judiciary Committee’s Democrats have investigated the ongoing ethical questions surrounding the U.S. Supreme Court, and now Committee Chair Dick Durbin is sharing what they’ve found.

“This report and its findings make clear that passage of the Supreme Court Ethics, Recusal, and Transparency Act, which was reported by the Senate Judiciary Committee on September 5, 2023, is a necessary step,“ the majority staff report issued on Saturday concludes, noting that more investigation is needed because “none of the justices have been directly questioned about their alleged misconduct.“

Although the investigation is coming to an end because the Democrats are losing the majority in January, Durbin released the 93-page majority staff report detailing what they were able to find — and also making public more than 800 pages of relevant supporting documents.

“[T]he Supreme Court has allowed a culture of misconduct to metastasize into a full-blown crisis that has driven public opinion of the Court to historic lows,” the report states. “Justices appointed by presidents of both parties have engaged in conduct that ranges from questionable to clearly violative of federal ethics laws, and several justices have done so consistently without suffering negative consequences.”

The report takes particular umbrage at the receipt of gifts by Justice Clarence Thomas, asserting, “The number, value, and extravagance of the gifts accepted by Justice Thomas have no comparison in modern American history.”

It also concludes that Justice Sam Alito “has created the appearance of impropriety in several instances that necessitate his recusal in specific cases under federal law.”

The report acknowledges the role that ProPublica played in advancing this inquiry, having published what the report describes as “several major exposés revealing extensive allegations of apparent ethical misconduct by sitting and former justices of the Supreme Court of the United States” — the first of which addressed Thomas’s relationship with Harlan Crow. (Notably, the report also highlights the fact that several senators, including Durbin, were looking into Thomas’s receipt of “favors” from Crow more than a decade earlier — something I’ve covered here.)

In one striking rebuke reflecting additional discussion in the report about Justice Antonin Scalia’s ethical lapses, as well as other questionable behavior from other justices, the report concludes that “the justices have allowed ethical misconduct to persist for decades.”

Ultimately, though, the report probably lays the most blame for the current state of affairs on Chief Justice John Roberts. It states:

Chief Justice Roberts refused to appear before the Committee, and, rather than investigate the misconduct consuming the Court, produced a nonbinding “Statement on Ethics Principles and Practices” that the justices purported to follow. Over a year and several additional exposés later, Chief Justice Roberts continues to refuse to act or to appear before Congress to take any responsibility for the impropriety he has let persist in the highest court in the land.

The Judicial Conference, of which the chief justice is the presiding officer, also faces criticism in the report, with the report concluding that the conference “has failed to adequately perform financial disclosure reviews, conduct investigations, and respond appropriately to ethical misconduct complaints against the justices.”

Noting further that the Judicial Conference “has the ability to hold justices accountable for their ethics violations,” it nonetheless asserts that it “has not taken any meaningful steps to do so.”

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The report was released Saturday morning, hours after the Senate approved a stopgap funding measure to keep the federal government open after Donald Trump and Elon Musk scuttled an earlier deal.

In a statement about the report, its findings, and its conclusions, Durbin said, “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.

“The highest court in the land can’t have the lowest ethical standards,” he added. “So long as Chief Justice Roberts and the Judicial Conference refuse to act, we must push for a legislative solution to this crisis to restore trust in the highest court.”

Saturday’s report does not dramatically change any understanding of the problems, but it does add still more clarity about what the lack of any enforced ethical standards has done to the court.

After significant back and forth, for example, Crow eventually provided information about the times — only for the past seven years — when Thomas or a family member was “a passenger on a yacht or plan owned, directly or indirectly, by Mr. Crow” and when Thomas or a family member “has been provided lodging at a property or facility, other than possible occasional short stays at Mr. Crow's principal residence, of which no records are maintained, that are owned, directly or indirectly, by Mr. Crow.“

If you think the statement tells you enough, wait for the lists.

Here are the more than 20 flights and 2 times on a yacht that Crow reported:

And then, here are the 7 times — so, every year — that Crow reported Thomas and/or his family stayed at Camp Topridge:

If you don’t recall, “Camp Topridge” is Crow’s private resort in the Adirondacks where the infamous painting of Thomas, Crow, and three other lawyers was displayed.

One of the lawyers depicted in the painting is Mark Paoletta — who Trump recently announced would be returning for his second administration, as general counsel for the Office of Management and Budget.

Another is the longtime Federalist Society figure Leonard Leo — who refused to comply with committee’s requests, leading to a subpoena being issued, which he ignored.

Subpoena issued to Leonard Leo; the response from Leo's lawyer.

The lawyer protecting Leo, David Rivkin Jr., is the same person who “interviewed” Alito in private along with James Taranto for four hours in 2023 as the committee’s ethics investigation was starting. Rivkin and Taranto, who is the Wall Street Journal’s editorial features editor, co-authored two pieces in the Journal coming out of the private interviews. (I covered some of these ethical questions here in August 2023.) In the second, Alito disclaimed the authority of Congress to act at all to regulate the court’s ethics. Here is what Rivkin and James Taranto wrote in relevant part, published July 28, 2023:

Three days earlier, on July 25, 2023, Rivkin sent his first letter to the committee on behalf of Leo, concluding that “we believe that your inquiry exceeds the limits placed by the Constitution on the Committee's investigative authority.”

It’s all absurd and awful, but a random comment about midway through the report stuck out to me.

“This timeline is non-comprehensive because Justice Thomas continues to violate federal law by refusing to disclose all relevant gifts of transportation and lodging,” the report states.

Thomas, Alito, Roberts, and the rest of the justices will next be on the bench on January 10, at which point Durbin and the Democrats will be in the minority in the Senate.