Congress “absolutely” can force ethics reform on the US supreme court, a senior Democratic senator said, countering arguments made by Harlan Crow, the Republican mega-donor whose gifts to the conservative justice Clarence Thomas are the source of scandal, and by John Roberts, the chief justice himself.
“It is not going to be easy,” Sheldon Whitehouse of Rhode Island told NBC’s Meet the Press in an interview to be broadcast on Sunday. “The work that we’re doing on ethics in the court ought to be easy. And yet it’s not. It’s partisan also.
“So I think that the first step is going to be for the judicial conference, the other judges, to put some constraints around the supreme court’s behavior and treat the supreme court the way all other federal judges are treated.”
Supreme court justices are nominally subject to federal ethics laws but in practice govern themselves.
Thomas has said he did not declare gifts from Crow including luxury travel and resort stays, a property purchase involving his mother and school fees for a great-nephew because he was informally advised he did not have to. He has said he will do so in future.
Observers have said Thomas clearly broke ethics laws. Democrats have called for Thomas to resign or be impeached, the former unlikely, the latter a political non-starter.
Crow denies wrongdoing and claims never to have discussed with Thomas politics or business before the court. The Guardian has shown Crow to have had business before the court during his friendship with Thomas.
Crow has also donated to groups linked to Ginni Thomas, the justice’s far-right activist wife who supported Donald Trump’s attempt to overturn the 2020 election.
Whitehouse’s NBC host, Chuck Todd, said: “It’s pretty established Congress can’t [impose ethics law on the supreme court], right?”
The senator said: “No, it absolutely can.”
Todd said: “Well, it doesn’t mean it’s constitutional.”
Whitehouse said: “Yes, it does. It means it’s constitutional because the laws that we’re talking about right now are actually laws passed by Congress. The ethics reporting law that is at the heart of the Clarence Thomas ethics reporting scandal is a law passed by Congress.”
Todd repeated the argument about separation of powers, between the legislature (Congress), executive (presidency) and judiciary, which lawyers for Crow and Roberts himself have cited in refusing to cooperate with information requests from the Democratic-run Senate judiciary and finance committees.
Whitehouse, a member of both panels, countered: “Certainly we can do the administrative side of judicial … I’ll be the first one to concede, if there’s a case in the judicial branch of government, we in the Congress have nothing to say about it.
“But in terms of administering how the internal ethics of the judicial branch are done – heck, the judicial conference which does that is a creation of Congress.”
The senator also called the Roberts court a “fact-free zone as well as an ethics-free zone”.
Referring to suggestions justices should pledge to observe ethics laws during the confirmation process, Whitehouse said: “We saw how the pledges on Roe v Wade went in the confirmation process.”
Roe, the 1973 ruling which guaranteed the right to abortion, was last year struck down by a 5-4 majority, all three justices appointed by Donald Trump (Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett) voting in the majority.
In the words of Factcheck.org: “A close examination of the carefully worded answers by the three Trump appointees … shows that while each acknowledged at their hearings that Roe was precedent, and should be afforded the weight that that carries, none specifically committed to refusing to consider overturning it.”
Whitehouse continued: “You get on to the court, and there you are, and there’s no process for determining what the facts are. That’s part of the problem here.
“When Justice Thomas failed to recuse himself from the January 6 investigation that turned up his wife’s communications [with Trump officials], he made the case that that was OK because he had no idea that she was involved in insurrection activities.
“That is a question of fact. That’s something that could have, and should have, been determined by a neutral examination. And so the problem with the supreme court is that they’re in a fact-free zone as well as an ethics-free zone.”
Whitehouse has campaigned against so-called “dark money” in US politics. Asked if he trusted the federal court system to be fair and impartial, he said: “Usually, I think the trial courts are very strong.
“I think … we’ve seen honest courtrooms make amazing differences with Dominion v Fox, with the parents at Sandy Hook against the creep who was pretending that their children’s murder wasn’t real, and now with the judgment against Donald Trump.
“So honest courtrooms are really important to cut through to the truth. When you get to the supreme court, if it’s an interest in which the big rightwing billionaires are concerned, [it’s] very hard to count on getting a fair shot.”
Asked if he was saying donors like Crow dictated how justices voted, Whitehouse said: “That would be what the evidence suggests.
“I think the statistics are pretty stunning at how often the judges who came out of the Federalist Society” – a conservative group which works to shape federal nominations – “do what they’re told by the amicus groups that come in on behalf of the right wing.”