Recent revelations about the unseemly financial dealings of some sitting justices of the U.S. Supreme Court (SCOTUS) have been extremely troublesome. Long-standing efforts of right-wing individuals and groups to influence the decision-making of justices are even more concerning.
SCOTUS has become one of the most powerful policy-making bodies in the country, yet it has little effective oversight and virtually no accountability.
One can understand the frustration that drove some Senate Democrats to suggest that Congress use its power of the purse to coerce SCOTUS into adopting and observing ethical standards. However, that goes too far, infringing upon the independence of the judicial branch of government.
The pernicious nature of legislative attacks on the financial foundations of a court system has been demonstrated in the State of Idaho over the last two years. In 2021, Idaho GOP legislators, angry that voters had earlier approved a Medicaid expansion initiative, passed legislation to make it almost impossible to qualify a voter initiative for the ballot. Two groups brought suit in the Idaho Supreme Court, seeking a declaration that the law was unconstitutional. The nonpartisan court struck down the law in a remarkable decision that further inflamed the hard-right legislature.
The legislature retaliated in its 2022 session by denying a pay raise to judges, while providing a 7 percent cost of living increase for all other state employees. Legislators are also intent on dismantling Idaho’s exemplary process for selecting judges, with the ultimate goal of injecting partisan politics into the process. More punishment of the judiciary appears to be forthcoming. It is extremely destructive of Idaho’s court system.
Even though the SCOTUS majority is deserving of a comeuppance for pandering to its right-wing supporters, there are better ways to respond than attacking the court’s financial underpinnings. The Democrats may be unable to muster the votes to accomplish real SCOTUS reform, but the Senate can and should hold hearings designed to examine and expose corrupt efforts of outside actors to curry favor with justices and influence their decisions.
The generous gifts that billionaire Harlan Crow has heaped upon Justice Clarence Thomas would be a good place for relevant Senate committees to conduct influence-peddling inquiries. The Finance Committee asked Crow how he treated his gifts for federal tax purposes, only to be told it had no business asking. The committee certainly has jurisdiction to consider tax policy issues. Crow was asked by the Judiciary Committee to provide a full accounting of the largesse he has bestowed upon Thomas and any other justice. Both committees should follow up with subpoenas in the event Crow refuses to produce the information.
The ethics inquiries should go well beyond Crow to examine the full range of efforts that have made unhealthy inroads into the work of SCOTUS. The Federalist Society, which counts all of the six justices in the court’s current supermajority as present or past members, has inordinate influence in the selection of, and contact with, those justices, as well as judges on federal appellate and district courts. SCOTUS and a number of the country’s lower federal courts have become hotbeds of right-wing judicial activism.
With the tremendous power that can be wielded by a court inclined to impose its political philosophy upon the country, it is no wonder that such a court would be a prime target for influence peddling. We do have rules, although rather weak ones, to limit or disclose efforts of individuals and organizations to gain influence with the legislative and executive branches of government, but very little on the books to prevent or expose corrupt influence in the judicial arena.
Last year we learned about “Operation Higher Court,” the evangelical effort to gain influence with Republican-appointed members of SCOTUS. The House Judiciary Committee held a hearing on the influence operation in December but, with the turnover of power in the House, it is unlikely that anything further will be done on the matter on the House side during the present Congress. The Senate committees should step up to pursue the matter and determine any necessary legislative fixes.
It is not as if GOP appointees are the only SCOTUS members that may be receptive to influence peddling; they just seem to have perfected the practice in recent years. The acceptance of travel, entertainment and gifts by SCOTUS members has been a longstanding problem on the court that cries for a solution. The court must adopt a set of rules for interaction with outside individuals and groups that come to SCOTUS members bearing gifts.
The state high court upon which I served for 12 years had a Code of Judicial Conduct that applied to members of our Supreme Court. The state has a statutory procedure for discipline of judges who violate the rules. There is absolutely no reason for SCOTUS to continue to resist setting an ethical code for its members, including rules for discipline of those who violate the code. If the court won’t do it, then Congress must act.
Jim Jones is a Vietnam combat veteran who served 8 years as Idaho attorney general (1983-1991) and 12 years as a justice on the Idaho Supreme Court (2005-2017). He is a regular contributor to The Hill.