In a carefully worded, but blunt statement, conservative former federal judge J. Michael Luttig sent a warning shot to the Supreme Court, calling on the Court to enact a code of conduct that would “subject itself to the highest professional and ethical standards that would render the Court beyond reproach.”
If the Supreme Court does not take such action, he cautioned, Congress has “the power under the Constitution” to prescribe ethical standards of conduct for the court.
The statement is part of written testimony Luttig – a former judge on the US 4th Circuit Court of Appeals – has submitted to the Senate Judiciary Committee holding hearings Tuesday and follows weeks of ethical controversies involving the Supreme Court. Luttig’s public admonition is especially notable because of his conservative credentials and his longstanding, close ties with the Supreme Court.
In 1991, Luttig was part of the team that prepared Justice Clarence Thomas for his controversial Senate confirmation hearings. Before that, he clerked for then-Chief Justice Warren Burger, as well as for former Supreme Court Justice Antonin Scalia when he sat on the US Court of Appeals for the DC Circuit. Luttig additionally was known as one of the top “feeder judges” on the court of appeals, sending 45 of his 47 clerks to clerk for justices on the Supreme Court.
The Senate Judiciary Committee is also receiving written testimony from Harvard professor and Supreme Court litigator Lawrence Tribe, a legal luminary on the left. Together, the letters present viewpoints from the legal left and right that Congress does have the power to enact Supreme Court ethics reform. They add to the cacophony of voices from across the legal profession that are speaking out in response to what is seen as a growing legitimacy crisis at the Supreme Court. Thus far, Republican lawmakers are mostly opposed to stepping in.
Considered a conservative legal heavyweight, Luttig’s willingness to weigh in is notable. He previously made headlines for his testimony to the House select committee that investigated January 6, 2021, where he stated that former President Donald Trump had tried to overturn the election and that “Trump and his allies and supporters are a clear and present danger to American Democracy.”
Luttig writes in the new letter to the Senate that binding a code of conduct for the justices “ought not be thought of as anything more – and certainly nothing less – than the housekeeping that is necessary to maintain a Republic.” Tribe also writes that Congress had the power to enact ethics rules for the court that would address the justices’ non-judicial conduct. Both legal experts, however, take the view that while Congress can impose a code of conduct on the justices, it cannot command the Supreme Court to write one for itself.
“I am not insensitive to the delicacy of the political choices Congress would be required to make in order to decide what limits to impose on how the Justices conduct themselves with respect to accepting favors from individuals and groups with business before the Court or with interests in the outcome of that business and on how transparent Justices must be in the way they lead their lives outside the Supreme Court itself and outside the performance of its judicial tasks,” Tribe writes. But, he says, given the mandates of the Constitution, such policy choices are “one buck Congress cannot pass.”
The Senate Judiciary Committee – led by Chairman Dick Durbin – organized Tuesday’s hearings amid a cascade of reports suggesting Thomas and other justices have engaged in conduct that at least raises the appearance of ethical impropriety. Whether the justices, in some of the alleged behavior, violated the financial disclosure rules the Supreme Court currently follows has been a matter of public debate. But Democrats and outside court reform advocates says that the recent reporting shows that the high court needs to adopt more stringent ethical standards, and argue that if the justices refuse to do so, Congress should step in to act.
Among the allegations were bombshell reports by ProPublica laying out luxury trips Thomas took that were paid for by a GOP megadonor and went largely unreported on the justice’s financial disclosures, as well as a real estate transaction involving the donor that was also not disclosed by the justice.
Also raising eyebrows was the sale of a property co-owned by Justice Neil Gorsuch to a lawyer with a leadership role at a major firm that has had business before the court. While it appears Gorsuch met his disclosure obligations in how he reported the sale, critics says that his financial filings – which omitted the identity of the property’s buyer – show that the current rules the court follows do not ensure enough transparency.
“We cannot excuse what has been reported already about Justice Clarence Thomas. The yacht trips to Indonesia sponsored by a billionaire in Texas, the Gorsuch real estate transaction have raised serious questions about whether things went unreported,” Durbin, a Democrat from Illinois, told CNN’s John Berman on Monday.
“This sort of thing is unacceptable in every branch of our government, at every level of the courts, save the nine men and women serving on the Supreme Court,” Durbin added.
Chief Justice John Roberts turned down an invitation to appear at the hearing, and last week, released a “Statement on Ethics Principles and Practices” – signed by all nine members of the court – which the justices said they were providing to offer “new clarity” to the public.
The justices “consult a wide variety of authorities to address specific ethical issues,” the statement said, while emphasizing that it should be left to individual justices to decide when his or her recusal from a case was necessary. The court’s statement noted they “voluntarily” follow the annual financial disclosure requirement and gift limits that are mandated for lower court justices.
Ethics proposals for the Supreme Court, as well as lower court judges, have floated around Capitol Hill for years. The latest proposal was introduced last week by Republican Alaska Sen. Lisa Murkowski and Sen. Angus King, an independent from Maine who caucuses with Democrats. It would require the Supreme Court to, within a year, to adopt of conduct but leaves it up to the justices to decide what that code looks like. Other Democrats are advocating for an ethics rider to be attached to the annual appropriations legislation Congress will pass to fund the federal judiciary next year.
There is not much appetite among Republicans to legislate in this space and they have focused on calls for more security, as they have bashed the lack of prosecutions by the Justice Department of demonstrators who showed up outside the justices’ homes last year to protest the court’s overturning of precedent that protected abortion rights.
“I’m not going to support any changes to laws regarding the Supreme Court, unless and until we get real protection for the justices and their families from this ongoing harassment,” Sen. Josh Hawley, a Missouri Republican who sits on the Judiciary Committee, told CNN last week.
With his letter to the committee, Tribe writes that ethics legislation would be “sensible” and “a necessary though probably not sufficient response to the current situation.”
Luttig, meanwhile, stops short of endorsing the position that Congress should act. Instead, he stresses that the Supreme Court should take steps on its own to ensure the public never has reason to question the ethics of the justices.
“Thus, there should never come the day when the Congress of the United States is obligated to enact laws prescribing the ethical standards applicable to the non-judicial conduct and activities of the Supreme Court of the United States, even though it indisputably has the power under the Constitution to do so, but paradoxically, does not have the power to require the Court to prescribe such standards for itself,” Luttig argues. “But if that day were ever to come, it would hardly be a constitutional crisis or anything of the sort. ”