Harlan Crow Has No Business Before The Court…

SCOOP: Here's the letter that Justice Clarence Thomas's benefactor Harlan Crow sent to the Senate Judiciary Committee last night. His lawyers, from top firm Gibson Dunn, are arguing Congress doesn't have the authority to investigate the Supreme Court.https://t.co/PAtQvK7a8S pic.twitter.com/0HQ8SNBteI

— Emily Birnbaum (@birnbaum_e) May 23, 2023

But he also thinks the Congress has no oversight over the Court. Even though the Constitution only establishes a position titled Chief Justice (it does not establish the authority of the position; hence there isn’t any, beyond Court rules and traditions.), and a court called the Supreme Court. The “judicial power” of the United States is vested in it and any inferior courts established by Congress. The court itself is set by the Congress (number of justices).

There is nothing in the constitution that places the courts above and apart from the Congress, except that Congress can’t diminish a judge’s compensation while he/she is in office. There is not even a whisper of a hint of a suggestion Congress can’t investigate the Court or set its ethical standards.

Crow’s lawyers are playing to Roberts.  As The New Yorker noted last week:

Law and ethics are two different things. In 1991, the year Clarence Thomas was confirmed to the Supreme Court, the Justices agreed to follow the ethics rules that the Judicial Conference—the policymaking agency in the judicial branch—had laid out, beginning in 1973. Their decision to abide by this Code of Conduct was voluntary, because it expressly binds federal judges who are not members of the Supreme Court. But they undertook to annually disclose, for example, nongovernmental income, investments, and gifts, although no real consequences could be imposed for their disobedience—aside from public shaming. That’s what Justice Thomas has faced following revelations of items he has not disclosed over the years, including luxury vacations, real-estate transactions, and private-school tuition for a grandnephew of whom he had custody, all funded by his friend Harlan Crow, a billionaire donor to the Republican Party. 

The argument that Justices aren’t bound by the Code of Conduct derives from the idea that the lower federal courts were created by Congress, while the Supreme Court was mandated by the Constitution. In 2011, when ethical questions were already swirling around Thomas’s friendship with Crow—and the Justice’s failure to disclose income that his wife, Virginia, had been paid by the Heritage Foundation, a conservative think tank, and by Hillsdale College, a Christian institution—Chief Justice John Roberts pointedly claimed that when Congress set up the Judicial Conference, a century ago, it was for “the courts it had created,” and so it “does not supervise the Supreme Court.” Congress, however, has enacted ethics laws for federal officials, including the Justices. Among other things, they require the financial disclosure of gifts; prohibit the receipt of “anything of value” from someone who has business before the Court; and call for Justices to recuse themselves when their “impartiality might reasonably be questioned.” Roberts acknowledged the laws in his statement, but said that “the Court has never addressed whether Congress may impose those requirements on the Supreme Court.” (He claimed that “the Justices nevertheless comply,” though compliance has been far from perfect.) If the Justices were to address the question, it seems possible that they’d find that applying those laws to Justices violates the separation of powers. The upshot of all this reveals the true scandal: Supreme Court Justices, alone in our system, are not truly regulated by anyone other than themselves.

Nice work, if you can get it. Roberts wants to get it; but can he?

The words "Fourteenth Amendment" appear nowhere in the Constitution.

-Jonathan Turley

— New York Times Pitchbot (@DougJBalloon) May 23, 2023

Nor do the words “judicial review.” The Court gave itself that power, and declared itself an equal power to the Congress (supreme under the Constitution, except for the limits placed on it there) and the President. That’s worked out okay so far, but as Dobbs proved, legal opinions can change. Do the Supremes really want to spark a Constitutional crisis on this? Is that the hill they want to die on? Judicial review is a good idea; but you can’t use it to put yourself above the law, or the constitution. And actually, judicial review can’t even enter into this conversation; not legitimately, anyway.

Roberts is going to fire Clarence Thomas and his own wife? https://t.co/gWoKNJ4L0H

— emptywheel (@emptywheel) May 24, 2023

Crow’s lawyers don’t care about such consequences. I suspect the Supremes actually do. but Roberts, at least, doesn’t know whether to shit or go blind. If Congress imposes an ethical code on the Court, does Roberts merely make a speech saying “Hell, no, we won’t go!” Does he announce it by slipping a note to Nina Totenberg? He can’t put it in a court order, which at least has the accepted force of law behind it. (There are myriad reasons, in law, why that couldn’t happen.) “Judicial review,” you see, is the power to determine the constitutionality of actions by the legislative or administrative branches in reviewing those actions in a court of law. But how does the Court sue Congress over a code of ethics for the Court so that the Court can review the challenge in court? 

Not even the Chief Justice can square that circle.

Frankly, if Congress passes a code of ethics binding on the Court, there’s not a lot the Court can do about it. Short of shredding their legitimacy, that is.