Chief Justice Roberts Has Declined to Testify on Court Ethics

Laura Litvan and Zach C. Cohen
·4 min read
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(Bloomberg) -- Chief Justice John Roberts has refused a request to testify before the Senate Judiciary Committee, leaving Democrats struggling for their next move over demands for a code of conduct for the Supreme Court.

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The request followed a report that Justice Clarence Thomas took undisclosed luxury trips over two decades paid for by a Texas real estate developer who has donated millions to conservative causes.

“He respectfully declines the invitation,” Senate Judiciary Chair Dick Durbin said to reporters at the Capitol Tuesday evening, holding up pieces of paper he said comprised Roberts’s response to the panel.

Durbin made the unusual request that Roberts appear or choose another justice to do so in his place on May 2, saying in a Thursday letter to the chief justice that a “decade-long failure” to act on a high-court code of ethics has fueled “a crisis of public confidence.”

Congressional Democrats are applying pressure on Roberts to act on an ethics code, threatening congressional action if he doesn’t. Still, Republicans who control the House and who can filibuster legislation in the Senate are showing no real interest. Supreme Court justices are the only federal judges not subjected to such a code.

Roberts’ letter came with an unusual “statement on ethics principles and practices,” signed by all nine justices. The three-page document described what it said was the court’s approach toward financial disclosure, outside income and recusals.

“The undersigned justices today reaffirm and restate foundational ethics principles and practices to which they subscribe in carrying out their responsibilities as members of the Supreme Court of the United States,” the statement began. It said the aim was in part to “dispel some common misconceptions.”

ProPublica recently reported that Thomas accepted but never reported extravagant trips over two decades that were paid for by Harlan Crow. The news organization separately reported that Thomas also didn’t report that he and relatives sold three Georgia properties to Crow in 2014, including his mother’s home that Crow then upgraded and where she resides.

Thomas defended himself after the initial report about the trips, saying he’d been advised that he didn’t have to disclose hospitality from close personal friends who didn’t have any business before the court. He also said he intended in the future to follow recent changes made to gift-reporting guidelines issued by the Judicial Conference, which makes policy for the federal judiciary and narrowed an exemption for “personal hospitality.”

Durbin told reporters late last week that he had no plans to subpoena Roberts, and he added that the hearing would go forward even without Roberts. He hasn’t announced any witnesses.

In his letter to Durbin, Roberts said he “must respectfully decline your invitation.”

“Testimony before the Senate Judiciary Committee by the chief justice of the United States is exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence,” Roberts wrote.

Durbin said Tuesday evening he hasn’t decided yet on next steps beyond that.

“Congress has authority and a responsibility when comes to the code of ethics for the court, and I think I’m going to have to read the letter and the attachments closely and decide what course to take,” he said.

Some Judiciary Committee Republicans said last week that Roberts shouldn’t testify, with John Cornyn of Texas dismissing a hearing as nothing but a “circus” for the chief justice. Senator Ted Cruz of Texas said Democrats have no real interest in having a debate over a Supreme Court code of ethics, but instead want to engage in a “political smear job” of Thomas.

Any legislation to impose a code of conduct on the high court would almost certainly fail in the Republican-controlled US House and would require nine Republican votes in the sharply divided Senate. Even if it succeeded, the court itself has suggested that Congress has no such power.

Roberts has never testified before Congress as chief justice. Other justices have occasionally appeared over the years, mostly on the court’s annual budget requests. The most recent example came in 2019, when Justices Elena Kagan and Samuel Alito testified on the budget — but the questions veered into a code of conduct because of sexual harassment issues in the judiciary.

The Judiciary Committee said in a statement on Tuesday night that “according to the Congressional Research Service, since 1960, Supreme Court justices have appeared before Congress to testify in at least 92 hearings, addressing such issues as the constitutional role of judges, judicial security, annual appropriations for the courts, and judicial compensation.”

(Updates with justices’s statement, starting in sixth paragraph.)

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