He was behind them for Trump; he just thinks his own court should always be exempt.
Last week, Chief Justice John Roberts sent a one-page letter declining Senate Judiciary Committee Chair Dick Durbin’s invitation to testify today about Supreme Court ethics. The exchange followed ProPublica’s bombshell report that Justice Clarence Thomas had accepted over 20 years of undisclosed luxury vacations, including private jet and yacht trips, from Republican megadonor Harlan Crow. Roberts’ perfunctory letter marked an unprecedented refusal by a chief justice to appear when called before Congress. It pulls back the curtain on a court that believes it doesn’t have to play by the same rules as everyone else because it is above the law—even though this court has used its power to rein in others.
Indeed, three years ago, Roberts wrote the court’s 7–2 majority opinion in Trump v. Mazars, the landmark case testing Congress’ power to compel production of President Donald Trump’s tax returns and other financial records. The case concerned a subpoena issued by the House Oversight Committee, which sought the documents to inform its investigation into whether Congress should amend its ethics-in-government laws.
Rejecting Trump’s assertion that the subpoena lacked a “valid legislative purpose,” Roberts resoundingly upheld Congress’ power to compel production of relevant information from the president. Roberts explained that congressional requests for a president’s personal information must be “related to, and in furtherance of, a legitimate task of the Congress,” and warned that courts must perform “careful analysis that takes adequate account of the separation of powers principles at stake.” But “congressional power to obtain information,” he recognized, is “broad,” “indispensable,” and necessary for Congress to “legislate wisely or effectively.” This power, Roberts continued, encompasses inquiries into “existing laws, studies of proposed laws,” and “surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.”
That is precisely the situation here. In inviting Roberts to testify, Durbin issued a reasonable, narrowly scoped oversight request to obtain information from a co-equal branch—he was requesting information that would support Congress’ inquiry into proposed and existing ethics laws, which includes how Congress might remedy the glaring defects in the court’s current ethical standards. In his cursory reply, Roberts didn’t bother to contest Durbin’s clearly valid legislative purpose. He made only vague reference to “separation of powers concerns and the importance of preserving judicial independence.” But separation of powers concerns are no greater for the judiciary than for the executive branch; indeed, there is a long history of Congress regulating and overseeing the court. And Roberts’s appeal to protecting “judicial independence” rings hollow when the nub of the committee’s concern is that the court has itself allowed that independence to be corrupted.
Most notably, Roberts’ letter represents a striking affront to Congress’ power and a serious escalation by the court toward constitutional confrontation. What follows may be the defining test of Roberts’ purported commitment to institutional legitimacy, and of Senate Democrats’ ability to defend congressional power through a moment in which, thanks to Roberts’ imperial court, our democracy itself is in peril.
There is no real question about whether what Thomas did was a violation—Thomas’ failure to disclose these extravagant gifts, specifically the private jet travel—violated the Ethics in Government Act of 1978, which exempts from mandatory disclosure only “food, lodging, or entertainment,” but not transportation, “received as personal hospitality.” Forced to respond to the firestorm, Thomas claimed he’d “sought advice” from his colleagues, who opined “that this sort of personal hospitality from close personal friends, who did not have business before the court, was not reportable.” But ever since ProPublica’s report, a steady drumbeat of new revelations has decimated those defenses—Crow did have business before the court in at least two cases, after all—and provided additional evidence that Thomas has acted illegally and unethically. And the problem doesn’t end with Thomas; concerns about undisclosed gift receipt, failed recusals and conflicts of interest, lack of candor, and leaks have variously come to light about Justices Scalia, Ginsburg, Gorsuch, Alito, Kavanaugh, Barrett, and Roberts himself.
These mounting scandals are a symptom of deeper rot at the court, which has famously defied calls to adopt a binding code of ethics despite overwhelming evidence that one is needed. Meanwhile, public trust in the court is spiraling as its Republican-appointed, Federalist Society–backed majority takes a wrecking ball to Americans’ basic rights and freedoms through unprincipled, partisan decisions that routinely distort the majority’s espoused “methodologies” of originalism and textualism. According to a poll released last week by Public Policy Polling, a majority of voters don’t trust or have confidence in the Supreme Court, and an overwhelming number—66 percent—were “very concerned” about its upcoming decisions. Fifty-seven percent of voters believe the court’s decisions in recent years have restricted individual rights and freedoms, rather than expanded them.
These numbers—and essentially every other recent poll about the court—make clear that Americans understand these extreme decisions are not the product of fair-minded judicial umpiring. To the contrary, they are the handiwork of a court that has been captured and weaponized for antidemocratic political and economic ends, the culmination of an extensively documented $600 million dark-money judicial takeover. As the Supreme Court barrels ahead with its deeply unpopular agenda, and as gerrymandered state legislatures—greenlit by the court—engage in increasingly authoritarian tactics, Americans are acutely experiencing the loss of their popular sovereignty, a government operating without the people’s consent. What could be more important for Congress to attempt to resolve?
Still, Roberts’ rebuff is hardly surprising given the demonstrated unwillingness of Democrats to meaningfully confront his runaway court for years and years leading up to this moment. In the face of Senator Mitch McConnell’s unprecedented constitutional norm-breaking and the Federalist Society network’s half-billion-dollar judicial campaign to “repeal the 20th Century” (as Reagan Solicitor General Charles Fried described the goal), Democrats have offered little more than a collective whimper. Rather than use their Senate majority to pursue hard-hitting investigative oversight of a court that has become brazen in its judicial activism and disregard of basic ethical standards, Democrats—with commendable exceptions—have let their judicial oversight muscles atrophy.
Indeed, in their first letter to the chief justice in the aftermath of the Thomas revelations, Judiciary Democrats could dust off only a decade-old letter as proof of their commitment to policing Supreme Court ethics. Meanwhile, Democrats have not meaningfully pursued even one of the urgently needed court reforms on offer, and seemingly have resigned themselves to the seat-stealing and misogynistic antics of the last several confirmation proceedings. No wonder Roberts felt he could blow them off without consequence.
This needs to change, and fast. With the Supreme Court in the throes of a deepening legitimacy crisis, Democrats must lean into this fight. Early returns on today’s Senate Judiciary hearing—which proceeded without the chief justice—suggest that real grassroots pressure will be needed for them to do so. Again with laudable exceptions, Democrats today declined to connect the dots between the court’s brazen ethics violations and its special interest–backed partisan agenda, hewing to safer terrain. Meanwhile, the predictable, highly coordinated howls of committee Republicans, closing ranks to protect their hard-stolen crown jewel, went largely unrebutted.
Today’s hearing must not be a box-checking exercise. Instead, it needs to be the first in a series of meaningful investigative proceedings—across various Senate committees and subcommittees—designed to root out and remedy the influences systemically corrupting this court. Without significant constitutional pushback from the people and their representatives in Congress, the corruption, mass shootings, attacks on freedoms, and global devastation the Supreme Court has unleashed will not stop. Because judging from the comportment of its chief, the court now believes itself to be above the Constitution itself.
