Behind the Democrats' Efforts to Regulate the Supreme Court
Behind the Democrats' Efforts to Regulate the Supreme Court

By Matthew Vadum

Democrats’ push to impose a code of conduct on the U.S. Supreme Court is driven by their desire to exert power over a court that hasn’t been ruling their way on key issues, legal experts say.

Democrats and their left-wing activist allies have been incensed over the past two years as the court sent abortion matters back to the states, axed affirmative action in college admissions, bolstered gun rights and public prayer, backed a website designer’s right not to promote a same-sex wedding, and strengthened private property rights while weakening the government’s regulatory powers over the environment.

Several experts told The Epoch Times that the left cannot accept the conservative majority on the Supreme Court, so it will keep agitating against it and try to undermine its legitimacy in the eyes of the public.

So far, the activism has propelled the court to adopt its first-ever formal code of conduct, issued on Nov. 13, but Democrats say it’s a toothless gesture and won’t fix what they say is a court that’s overly sympathetic to business interests and conservative causes.

“The court’s new code of conduct falls far short of what we would expect from the highest court in the land,” Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) said.

“While the code of conduct prohibits the appearance of impropriety, it allows the justice to individually determine whether their own conduct creates such an appearance in the minds of ‘reasonable members of the public.’ This is something that justices have repeatedly failed to do over the last few years.”

To remedy the supposed crisis at the court, Mr. Durbin backs the proposed Supreme Court Ethics, Recusal, and Transparency (SCERT) Act of 2023, which his committee approved on a party-line vote in July.

The proposal, which Republicans have denounced as unconstitutional, would create a system allowing members of the public to file complaints against justices for violating the proposed code of conduct or for engaging “in conduct that undermines the integrity of the Supreme Court of the United States.”

Among other things, it would also impose mandatory recusal standards and create a panel of lower court judges to investigate complaints against the Supreme Court.

Democrats are proposing their code of conduct “so they can control the Supreme Court,” said Steven J. Allen, a distinguished senior fellow at Capital Research Center, a watchdog group.

“They’re doing this to get rid of one or more Republican appointees so they can be replaced,” Mr. Allen said.

“That’s almost the definition of ‘lawfare’—using the legal system to wage war on your opponents. You pack the court by knocking off a Republican or two.”

Mr. Durbin, a longtime antagonist of Justice Clarence Thomas, who’s considered by many to be the court’s preeminent conservative jurist, has been particularly focused on the justice’s alleged transgressions.

Supreme Court Justice Clarence Thomas arrives for the ceremonial swearing in of Justice Brett Kavanaugh in the White House in Washington on Oct. 8, 2018. (Chip Somodevilla/Getty Images)

Justice Thomas has been a lightning rod for criticism from the left for a long time.

Mr. Allen predicts the “smear campaign” against Justice Thomas “will continue as long as he’s alive.”

Mr. Durbin and his committee colleagues issued a blizzard of public condemnations when earlier this year it was reported that billionaire Harlan Crow, a big Republican Party donor, gave Justice Thomas a series of luxurious vacations and tuition support for a grandnephew the latter raised and purchased real estate from the justice’s family.

Justice Thomas didn’t disclose the events at the time, saying he was advised that it wasn’t required, but he has vowed to disclose such events going forward.

No evidence has been uncovered to suggest that the justice’s vote in specific cases before the court was influenced by the gifts. Having wealthy friends isn’t against the law, the justice’s defenders say.

Justice Thomas is also routinely attacked by critics for the conservative activism of his wife, Ginni Thomas, a high-profile supporter of President Donald Trump.

Democrats, who have characterized Republican efforts to contest the 2020 presidential election after Election Day as an affront to democracy, were angered that Ms. Thomas reportedly signed form letters urging state lawmakers in Arizona and Wisconsin to overturn President Joe Biden’s election victory.

Ms. Thomas has also said she believes the 2020 election was rigged.

A video from Supreme Court Justice Clarence Thomas’ 1991 confirmation is played during a Senate Judiciary Committee hearing about Supreme Court ethics reform on Capitol Hill in Washington on May 2, 2023. (Chip Somodevilla/Getty Images)

Liberal groups have called upon Justice Thomas to recuse himself from a plethora of cases related to the election and to President Trump’s ongoing criminal prosecutions. They argue that Justice Thomas and his wife are too close to Republicans.

Veteran Supreme Court watcher Curt Levey, president of the conservative Committee for Justice, said it’s a one-way street.

“What are the odds that Senate Democrats would call on one of the liberal justices to recuse if that justice’s spouse had expressed strong public opinions about the 2020 election being fair?” he said.

They would never demand that a liberal justice recuse “because a spouse had expressed political opinions about newsworthy events,” he said.

Pressure Campaign

Jim Burling, vice president of legal affairs for the Pacific Legal Foundation, a national nonprofit public interest law firm that challenges government abuses, said the Durbin-backed SCERT bill and his committee’s investigation of conservative justices is an effort “to try to limit the legitimacy of the court.”

“They don’t like the fact that we have a court nowadays that’s not doing what the progressives think that the court should be doing,” he said.

It bothers them that the court is “very different today” from the way it was under Chief Justice Earl Warren (1953 to 1969) and Chief Justice Warren Burger (1969 to 1986) when the court veered left, Mr. Burling said.

“It upsets them that they can’t win the case on the merits, so you just throw mud around instead and try to obfuscate what the real issue is here,” he said.

Demonstrators protest at the entrance of the gated community where Supreme Court Justice Thomas Clarence lives in Fairfax, Va., on June 24, 2022. (Roberto Schmidt/AFP via Getty Images)

Mr. Levey said Sen. Sheldon Whitehouse (D-R.I.), sponsor of the SCERT Act, has shown that he wants to keep putting pressure on the court’s conservative members.

The fact that the court adopted its own code shows that “even the Supreme Court, where they have lifetime tenure, can be pressured,” he said.

“This is why the Democrats are constantly attacking the Supreme Court because it does have an effect and you see the effect here,” Mr. Levey said.

“This is just another form of trying to harass and intimidate the court. Democrats have discovered over the years that if you let the conservative justices know that you’re going to make life difficult for them … some of the center-right justices are fairly easily intimidated.”

Maybe about half of those justices will then “go out of their way not to anger the Democrats too much.” Mr. Levey said.

Politicians have been trying to manipulate the Supreme Court for a long time, Mr. Allen said, “by way of essentially harassing them.”

He pointed to the 2010 State of the Union address when President Barack Obama took the unusual step of chastising the robed Supreme Court justices seated before him for their ruling in the Citizens United case, which changed campaign finance restrictions.

“With all due deference to separation of powers,” he said, the Citizens United precedent “will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.”

Justice Samuel Alito shook his head in disagreement, appearing to mouth the words, “Not true.”

And in March 2020, at a pro-abortion rally outside the Supreme Court, Sen. Chuck Schumer (D-N.Y.) vowed unspecified retribution against conservative justices Neil Gorsuch and Brett Kavanaugh should they vote to uphold a Louisiana law that imposed abortion restrictions.

Sen. Chuck Schumer (D-N.Y.) raises his fist at a pro-abortion rally outside of the Supreme Court in Washington on March 4, 2020. (Sarah Silbiger/Getty Images)

“I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind! And you will pay the price! You won’t know what hit you if you go forward with these awful decisions,” Mr. Schumer said as the case was being argued inside.


Mr. Burling said he understands why the justices drew up their own code.

“Nothing in the [court-approved] code is particularly earth-shattering … but it was done because there have been so many claims saying that the court has no ethics. Well, that’s not true. It never has been true. And so they’re saying, ‘look, these are the ethical rules that we’ve been following for a long time,’” he said.

But the provision in the SCERT bill that would allow private citizens to file complaints against the court is “absurd,” Mr. Burling said.

“This is the Supreme Court that we’re talking about, and to have it subjected to complaints being filed by members of the public—I just can’t imagine what kind of chaos would ensue if that were to be the case,” he said.

“Everybody who didn’t like what the court has done in a case, anybody with a case before the court that gets turned down or accepted or ruled on in a way that they didn’t like, could file a complaint.

An activist speaks outside the Supreme Court in protest against the new Texas abortion law that prohibits the procedure from around six weeks into a pregnancy, in Washington on Sept. 2, 2021. (Drew Angerer/Getty Images)

“And you’re going to have to set up a process to deal with those complaints that would simply suck all the life out of the court because it would just be such a hassle.”

The proper method for dealing with problem justices is impeachment, as specified in the Constitution, he said.

“We don’t need an extra body to do that,” and besides, Congress already has the power to exercise some control over the Supreme Court. The Senate can turn down nominations to the court, he said.

Congress “cannot set up some sort of administrative body to regulate the court. That isn’t how it works,” he said.

The Supreme Court is “a co-equal branch of government, and one branch of government doesn’t get to administer another branch of government outside the constitutional context,” he said.

“There is just no constitutional way to have the sort of enforcement mechanism that the progressives have been talking about.”

Mr. Allen said the private complaints provision invites mischief.

Democrats and their allies “would just file all sorts of complaints, and would let their imaginations run wild with supposed conflicts, so that they could follow these charges and just get the court bogged down,” he said.

Democrats haven’t tried to put the bill before the full Senate because they don’t have the required votes, according to Sen. Lindsey Graham (R-S.C.), who has accused Democrats of waging a “jihad” against the court.

Sen. Lindsey Graham (R-S.C.) speaks during an executive business meeting of the Senate Judiciary Committee in Washington on Nov. 9, 2023. (Alex Wong/Getty Images)

Even if the legislation were to secure approval from the Democrat-controlled Senate, it’s unlikely to survive the Republican-dominated House of Representatives, experts say.

“I think the chances go from zero to less than zero, that it’ll get through the Senate,” Mr. Burling said.

“It was simply political grandstanding … to try to rally the progressive tribe in the attacks on the legitimacy of the court. And I don’t think most people were buying it.”

Mr. Levey also said the SCERT bill faces long odds.

“Given that it would be subject to a filibuster, you would need 60 votes. I would say [its chances are] slim or none. And then even if it passed the Senate, it would have to pass the House, where obviously the odds are low,” he said.

Other Justices

Aside from an incident decades ago, complaints about the justices’ ethics rarely go anywhere.

In 1969, the late Justice Abe Fortas became the only justice to resign under pressure from the nation’s highest court after it was discovered that he accepted a $20,000 yearly retainer for life from a Wall Street financier who later went to prison for breaking securities laws. Justice Fortas was also criticized for his close personal relationship with the man who appointed him, President Lyndon Johnson, a Democrat.

Although Justice Thomas has taken the brunt of most of the Democrats’ criticism, he isn’t the only current or recent justice whose ethics have been questioned.

Conservative Justice Alito, who often recuses himself from cases involving companies in which he has invested, failed to recuse himself in several cases reportedly involving the hedge fund of his billionaire friend Paul Singer.

Justice Alito took a luxurious fishing vacation to Alaska in 2008 and was flown there on a private jet paid for by Mr. Singer. The justice didn’t report the trip on his annual financial disclosures at the time. He later denied he did anything wrong.

(L–R) Supreme Court Justice Samuel Alito at an event in Washington in 2016, Supreme Court Justice Ruth Bader Ginsburg at the State of the Union address in Washington in 2009, and Supreme Court Chief Justice John Roberts at the Supreme Court building in Washington in 2018. (Chip Somodevilla/Getty Images, Nicholas Kamm/AFP via Getty Images, J. Scott Applewhite/AP Photo)

Conservative Justice Gorsuch was part owner of a 40-acre tract of property that was sold to Brian Duffy, the chief executive of the law firm Greenberg Traurig, which had business before the court. The justice didn’t name the buyer on his financial disclosure forms. The property went on the market in 2015 but didn’t sell until 2017, a little more than a week after the justice’s nomination to the court was confirmed by the Senate.

Liberal Justice Sonia Sotomayor’s staff reportedly prodded public institutions at which she spoke to buy her books; an issue that Mr. Durbin has occasionally raised at committee hearings.

Chief Justice John Roberts, considered to be one of the more moderate conservatives on the court, has been criticized because his wife has reportedly made more than $10 million in commissions for recruiting attorneys for white-shoe law firms, including some that had business before the court.

Before that, liberal former Justices Stephen Breyer and the late Ruth Bader Ginsburg, as well as the late conservative Justice Antonin Scalia, also came under fire for alleged ethical problems.

Justice Scalia was frequently criticized by Democrats for taking trips paid for by private sponsors. The Center for Responsive Politics found he took 258 subsidized trips from 2004 to 2014.

Two instances involved justices’ spouses.

In 2015, Justice Breyer declined to recuse himself from an energy case even though his wife held $30,000 in stock in a corporation involved in the case.

Justice Ginsburg didn’t recuse herself in upwards of 20 cases involving companies in which her husband held stock.

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