Roberts struggles to keep Supreme Court out of ethics fight

Chief Justice John Roberts has long aimed to stay above the political fray, but his goal is being put to the test as Democrats vow to intervene in the Supreme Court’s recent ethics controversies. 

Roberts’s refusal to appear before the Senate Judiciary Committee on Tuesday left Democrats pulling no punches as they asserted the justices cannot be trusted to police their ethics. 

Republicans, meanwhile, portrayed the push as an attempt to smear Justice Clarence Thomas and the court’s other conservatives.

Even as the prospect of ethics legislation remains shaky in the divided Congress, the debacle has left Roberts, 68, grappling with how to remain neutral amid the partisan warfare and cratering public confidence in the high court.

FILE – Chief Justice of the United States John Roberts arrives before President Joe Biden delivers the State of the Union address to a joint session of Congress at the Capitol, Tuesday, Feb. 7, 2023, in Washington. (AP Photo/Jacquelyn Martin, Pool, File)

Roberts’s absence came with little surprise. He has strived to insulate the court’s image from partisan politics since becoming chief justice in 2005, and Tuesday’s hearing consisted of outraged Democrats, on camera, delving into ProPublica’s investigation into luxury trips Thomas accepted from billionaire and GOP megadonor Harlan Crow. 

The chief justice cited separation of powers concerns in declining Senate Judiciary Committee Chairman Dick Durbin’s (D-Ill.) invitation, calling it an “exceedingly rare” offer.

“I’m more troubled by the suggestion that testifying to this Committee would somehow infringe on the separation of powers or threaten judicial independence,” Durbin said on Tuesday. “In fact, answering legitimate questions from the people’s elected representatives is one of the checks and balances that helps preserve the separation of powers.”

It follows a pattern of the decorum-conscious Roberts attempting to stay out of the partisan fighting on Capitol Hill. Even on ordinary topics, like the court’s budget, Roberts has left it to his colleagues to testify.

Sen. Dick Durbin, D-Ill., chairman of the Senate Judiciary Committee, leads a hearing in response to recent criticism of the ethical practices of some justices of the Supreme Court, at the Capitol in Washington, Tuesday, May 2, 2023. Associate Justice Clarence Thomas has been criticized for accepting luxury trips nearly every year for more than two decades from Republican megadonor Harlan Crow without reporting them on financial disclosure forms. (AP Photo/J. Scott Applewhite)

“One thing we have to do every year is get money from Congress, just like every other federal entity. And so we send a couple of justices to Congress, explain what we need, and they get it. Now, I knew that there are people on the court who are better at that than I am, so they go. I don’t go,” Roberts told Rensselaer Polytechnic Institute students in 2017.

After the 2010 State of the Union Address, when then-President Obama denounced the Supreme Court’s Citizens United v. FEC ruling on campaign finance with the justices sitting feet away, the mild-mannered Roberts issued an unusual critique.

Speaking to law students weeks later, Roberts questioned why the justices participate in what he said had “degenerated into a political pep rally.” Roberts has attended every address since, while Justice Samuel Alito, who mouthed the words “not true” in an infamous moment after Obama’s snipe, never returned.

“Some people I think have an obligation to criticize what we do, given their office, if they think we’ve done something wrong, so I have no problems with that,” Roberts told the students.

“On the other hand, as you said, there is the issue of the setting, the circumstances and the decorum,” he continued. “The image of having the members of one branch of government standing up literally surrounding the Supreme Court cheering and hollering — while the court, according to the requirements of protocol, has to sit there expressionless — I think is very troubling.”

Years later, Roberts was back in the Capitol at the center of a bitter political battle: presiding over the impeachment trial of then-President Trump.

He emerged unscathed and earned bipartisan praise, but not without some testy moments. As the prospect rose of an even split on the crucial issue of whether to allow witnesses, Roberts announced he would not step in to break a tie.

“I think it would be inappropriate for me, an unelected official from a different branch of government, to assert the power to change that result so that the motion would succeed,” Roberts told senators.

Roberts has since avoided potentially going through the wringer on Capitol Hill. He declined to preside over Trump’s second impeachment trial, and on Tuesday, he dodged appearing before outraged Democrats. But that didn’t stop them from lambasting Roberts and the high court.

“What Chief Justice Roberts has done in refusing to come before this committee is judicial malpractice. It is a disservice to the courts,” said Sen. Richard Blumenthal (D-Conn.).

Roberts did not return a request for comment through a spokesperson.

Republicans spent much of the hearing condemning what they view as a double standard, portraying the effort as an attempt to derail the conservative-majority court. 

They condemned Senate Majority Leader Chuck Schumer’s (D-N.Y.) warning last year that two conservative justices would “pay the price” if they voted against abortion rights, protests outside conservative justices’ homes and the financial dealings of the court’s liberals.

“We’re going to push back as hard as we can and tell the American people the truth about what’s going on. This is not about making the court better. This is about destroying a conservative court. It will not work,” said Sen. Lindsey Graham (R-S.C.), the committee’s ranking member.

Sen. Lindsey Graham (R-S.C.) addresses reporters during a press conference on Wednesday, May 3, 2023.

Sen. John Kennedy (R-La.) had this take: “Today’s hearing is an excuse to sling more mud at an institution.” 

One Republican senator, Alaska’s Lisa Murkowski, has joined Democrats’ calls, but the odds of passing any ethics legislation remain slim in the GOP-controlled House.

“It’s very difficult to do anything in a divided Senate, especially when the committee of jurisdiction is equally divided. I think Roberts is using that to his advantage and just taking the easy way out, because he knows there’s no real way to compel anything beyond that,” Gabe Roth, executive director of judicial watchdog group Fix the Court, said in an interview ahead of the hearing.

It wouldn’t be Democrats’ first failed attempt. Roughly a decade ago, Roberts rebuffed their calls to formally adopt the code of conduct in place for lower federal judges. He said the justices leverage it as a starting point, characterizing criticisms that the court is exempt from ethical principles as “misconceptions.”

Roberts added, “In particular, Congress has directed Justices and judges to comply with both financial reporting requirements and limitations on the receipt of gifts and outside earned income. The Court has never addressed whether Congress may impose those requirements on the Supreme Court.”

As the chief justice strives for an insular approach, he faces more than just angry lawmakers. Public confidence has declined sharply in the court, spurred by the court’s recent decision to overturn Roe v. Wade.

An NPR/PBS NewsHour/Marist poll last month recorded that only 37 percent of Americans have a great deal or quite a lot of confidence in the court, the lowest measure recorded since the pollster began asking the question in 2018.