John Roberts Stood Up the Senate. Why Is He Getting Away With It?

Millions of dollars in secret gifts. Pro-insurrection flags flying on a justice’s front lawn. Recorded statements of sympathy for the Christian nationalist cause.

Revelations about the unethical conduct of Justices Clarence Thomas and Samuel Alito have sparked a judicial crisis that’s reached a fever pitch. This comes just as the Supreme Court is handing down a raft of controversial decisions in cases implicating the interests of the right-wing billionaires who spent lavishly on both men, the religious right that has courted them, and the criminally indicted former president—who may name their successors to the bench.

The good news is that Iowa’s Sen. Chuck Grassley, the former chairman of the Senate Judiciary Committee, introduced a bill that would create an inspector general for the judiciary. Grassley recognized that “the current practice of self-regulation of judges with respect to ethics and the judicial code of conduct has time and time again proven inadequate,” and that more needs to be done “to help ensure that our Federal judicial system remains free of corruption, bias, and hypocrisy.”

But that was 2017.

When Senate Democrats tried recently to pass legislation that would require the justices to establish a binding code of conduct, including gift disclosure rules aligned with those applicable to Congress, the Judiciary Committee’s top Republicans blocked them.

Sen. Lindsey Graham called the bill “unconstitutional overreach.” Sen. John Kennedy asserted: “This bill is about abortion.” Sen. Grassley did not speak.

In a way, Kennedy has a point. Although the Supreme Court Ethics, Recusal, and Transparency Act of 2023 has nothing to do with abortion, the Republican blockade had everything to do with it—and all of the other party-line victories the Supreme Court has delivered to Republicans and their allies on guns, voting rights, workers’ rights, and dismantling protections for our air and water. Given these successes, any previously held beliefs about the importance of judicial ethics must yield to protecting the Supreme Court supermajority installed through the hard work of holding open a seat for nine months before the 2016 presidential election and then rushing a confirmation a week and a half before the next one in 2020.

So when Justices Thomas and Alito turn the federal recusal statute—which applies to the justices—into a dead letter, or when Thomas accepts millions of dollars’ worth of secret gifts from billionaires, congressional Republicans see no choice but to make excuses. Defending the indefensible with Donald Trump has given them plenty of practice.

The last decade should give the public little hope that congressional Republicans will find their integrity on this issue, particularly as the court has given Trump a major gift by delaying his election subversion trial, almost certainly until after the election.

But Democrats hold the majority in the Senate, and Judiciary Committee Chairman Dick Durbin controls the committee that can investigate judicial corruption and use compulsory process to do so. His investigation recently uncovered Thomas’ failure to disclose—even after correcting the forms—more billionaire-provided private jet travel, a potential criminal violation.

Based on recent comments, though, Durbin appears resigned to letting the matter drop there. There is much more he can and should be doing.

In response to the Alito scandals, Chairman Durbin sent a letter to Chief Justice John Roberts requesting a private audience to discuss his concerns. Shocking no one, Roberts refused to engage. Alito responded too, scoffing at Durbin’s suggestion that he recuse himself from the Trump insurrection case and offering an explanation that does not comport with available evidence.

Durbin’s next move remains unclear.

Part of Durbin’s reluctance to fight for accountability owes to the razor-thin Senate majority and his fear that further inflaming GOP tempers by investigating Republican justices would make it harder to confirm the handful of President Joe Biden’s lower court nominees that remain waiting for a vote. At least until recently, the strategy has succeeded, as occasional cooperation from Republican senators has eased Durbin’s ability to shepherd the more than 200 diverse and well-qualified federal judges to the bench, an accomplishment for which he and President Biden deserve much credit.

But that accomplishment—or the certainty of more Republican obstruction on ethics—is not reason for Durbin to hamstring his committee’s oversight authority to deal with the most serious ethics and corruption scandals in Supreme Court history, especially when the few remaining judges Durbin hopes to confirm would inevitably see their most important rulings shredded by the Supreme Court’s right-wing supermajority.

Durbin’s peacemaking approach also speaks to his institutionalist temperament and desire to restore the norms of comity and bipartisanship that once defined the Senate. In clinging to traditions like the blue slip for district court nominees—a practice that gives senators of either party an effective veto over a president’s judicial selections in their states—Durbin is hearkening for a return to what many senators view as the good old days.

But norms don’t work when only one side respects them, and whether Durbin likes it or not, those days are long gone—especially when it comes to the all-important courts.

Waiting for the Republicans to find their integrity could leave unanswered Justice Alito’s suggestion that Congress lacks any “authority to regulate the Supreme Court—period.” But Congress has long set the parameters for the court’s authority, dating back to the Judiciary Act of 1789. And as recently as four years ago, Chief Justice Roberts vindicated Congress’ oversight powers as “broad” and “indispensable.” By negotiating against himself on these core constitutional questions, Durbin is ceding the people’s democratic powers to an increasingly imperial court.

Forcing tough floor votes that put members on the record on these questions—and conducting hearings and investigations to expose the justices’ evident lawbreaking—would allow Americans to see who stands for corruption, and who for accountability.

Meanwhile, House Democrats are showing that they don’t need the majority to defend Congress’ constitutional authorities and shine a bright light on the corruption infecting the court’s legitimacy, with Reps. Jamie Raskin and Alexandria Ocasio-Cortez leading their colleagues on the House Oversight and Accountability Committee to “treat this moment like the emergency it is and use every tool in our democracy’s arsenal to fight back,” as Ocasio-Cortez said at a recent roundtable discussion. In doing so, they are laying important groundwork for real accountability and reform—including by introducing the High Court Gift Ban Act, which they put forward this week to prohibit the justices from receiving any gifts that are more than $50 in value. It is more than a little ironic that they introduced this legislation the day before the Supreme Court’s 6–3 Republican majority—in a decision derided by Justice Ketanji Brown Jackson as “absurd”—once again voted to significantly weaken federal bribery laws.

As the court majority clamps down the levers of democratic pushback and hurtles America toward theocratic authoritarianism, cramped notions of constitutional powers are normalizing judicial impunity and deepening Americans’ creeping despair that there is no way out of this mess.

In fact, there is, and it begins with Congress.