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In Light of Thomas Controversy, Durbin Invites Chief Justice Roberts to Testify

Justices of the Court have been “falling short of the ethical standards” expected of them, Durbin wrote.

Justice Clarence Thomas sits during a group photo of the Justices at the Supreme Court in Washington, DC on April 23, 2021.

Democratic Sen. Dick Durbin of Illinois, the chair of the Senate Judiciary Committee, has issued a rare invitation for Supreme Court Chief Justice John Roberts to appear before the committee to discuss whether the Court’s ethical standards need more teeth.

The committee is planning to address the issue, with or without Roberts, on May 2. The decision comes as reporting from ProPublica has revealed that Justice Clarence Thomas has received a multitude of lavish gifts from billionaire Harlan Crow, who has donated millions of dollars to right-wing politicians and causes.

“There has been a steady stream of revelations regarding Justices falling short of the ethical standards expected of other federal judges and, indeed, of public servants generally. … The Court’s decade-long failure to address them has contributed to a crisis of public confidence. The status quo is no longer tenable,” Durbin said in his letter to Roberts, which was sent on Thursday.

Durbin told Roberts in his letter that if he doesn’t want to attend the meeting or testify, a different justice would be welcome to do so in his place.

The request is an unusual one, and could rattle some on the Court, who may view it as an improper breach of judicial branch independence. The Republican ranking member of the Judiciary Committee, Sen. Lindsey Graham (R-South Carolina), told reporters that he didn’t think the invite was inappropriate, but that he “wouldn’t be surprised” if Roberts declined, and that he would “support his decision not to come” if that was his preference.

While the independence of the judiciary has long been respected, Congress does have the legal authority to impose limits on the Supreme Court. The Constitution grants the Court “appellate jurisdiction” of federal cases in the U.S., “under such regulations as the Congress shall make.”

The Supreme Court has ethical standards in place already, including rules mandating that gifts to justices be reported. The enforcement of those standards, however, is lacking — a problem that is unique to the United States, Harvard Law senior lecturer Nancy Gertner said in an interview last month.

“Every court in the world has dealt with the problem of a high court not having a court higher than themselves, other than perhaps God, to evaluate their behavior, and has come up with mechanisms to do so,” Gertner said. “We stand alone in not having an enforcement mechanism.”

She went on:

Not having an enforceable code of conduct means that you don’t follow it. … If the institution doesn’t have an enforceable way of policing itself, then it is not to be trusted.

Recent reporting from ProPublica has revealed the extent of Crow’s and Thomas’s relationship, which has been the target of widespread scrutiny in recent weeks. Crow has given lavish gifts to the Supreme Court justice, including funding expensive vacations. Crow has also performed favors for Thomas, purchasing a home the justice owned, making tens of thousands of dollars in upgrades to it, and allowing Thomas’s mother to remain living there, rent-free, for several years.

The in-kind donations to Thomas, unheard of for a sitting member of the Supreme Court, is a considerable conflict of interest given that Crow also donates substantial sums to political candidates and right-wing causes.

Crow has given at least $10 million in political donations over the years, though the actual amount may be even higher, given that he has likely donated some of his wealth to “dark money” groups during that time as well. Crow is also a supporter of the Federalist Society, a conservative organization of lawyers and judges, and has “long supported efforts to move the judiciary to the right,” ProPublica has reported.

Crow’s board membership within the American Enterprise Institute creates another direct conflict of interest with Thomas, as the organization frequently submits amicus briefs for consideration by the Supreme Court, encouraging justices to take conservative stands on critical legal matters before them. Crow has also given Thomas’s wife, conservative activist Ginni Thomas, $500,000 to start a Tea Party group.

In light of these revelations, many have called for Thomas to be impeached.
“This is beyond party or partisanship. This degree of corruption is shocking—almost cartoonish. Thomas must be impeached,” Rep. Alexandria Ocasio-Cortez (D-New York) said on Twitter.

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