Senate Democrats Want to Use Power of the Purse to Force Supreme Court Justices to Adopt Ethics Code
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Key Senate Democrats are pushing to make funding for next year’s Supreme Court term conditional on the creation of an ethics code.
The move comes after news broke last month that the third branch was requesting additional security funding from Congress due to increased threats. Since the release of a draft opinion in the Dobbs case, which ultimately overturned Roe v. Wade, the justices have seen a sharp rise in protests outside the Court building as well as their private residences.
Senator Chris Van Hollen (D., Md.), chairman of the Senate subcommittee charged with writing the annual funding bill for the judiciary, said that he will use the upcoming funding bill to try to force the justices to abide by an enforceable code of ethics, according to the Washington Post.
“The Supreme Court should have a code of ethics to govern the conduct of its members, and its refusal to adopt such standards has contributed to eroding public confidence in the highest court in the land,” said Van Hollen. “It is unacceptable that the Supreme Court has exempted itself from the accountability that applies to all other members of our federal courts, and I believe Congress should act to remedy this problem.”
Lower court judges are often beholden to ethics rules that don’t apply to the justices, with Van Hollen noting that he doesn’t think the issue should be a partisan one. Van Hollen will need Republican support in the Senate to get his proposal through. While some Republicans in both chambers have expressed openness to ethics rules for the justices, nothing is guaranteed.
Senator Susan Collins, ranking member of the Senate Appropriations committee, questioned Van Hollen’s authority to use the power of the purse to sway justices. She told the Post that, in any case, the best venue for such a debate would be the Judiciary committee, not an Appropriations subcommittee.
Van Hollen’s comments come shortly after fifteen members of the Democratic caucus wrote to him and the subcommittee’s ranking member Senator Bill Hagerty (R., Tenn.). The signatories, which included Judiciary chairman Senator Sheldon Whitehouse (D., R.I.), argued that language ought to be attached to next year’s funding bill to force the Supreme Court to adopt transparent processes for recusals and for investigating ethics investigations.
“They are the only organization in the entire United States government that has no mechanism for investigating alleged ethics violations,” Whitehouse told the Post. “It’s crazy.”
One check that does exist against the justices and all members of the third branch is the Constitution’s impeachment process.
The issue of adopting an ethics code has come up for debate within the Supreme Court in the past. The Post previously reported that the justices debated it for at least four years, but could not come to a consensus. Roberts and other justices have argued that they cannot be bound by all of the rules that apply to lower court judges because of their unique role in the constitutional structure as the ultimate decision-makers in the third branch.
As the court wades into more and more controversial issues such as abortion, scrutiny from Congress as well as the public has increased. Democrats have previously defended demonstrations outside the homes of the justices so long as they are peaceful. This is despite there being a federal statute which prohibits protests outside the homes of judges and jurors, who might be intimidated into changing their thinking on pending cases in response to such displays.
Republican senators on the Judiciary committee grilled Attorney General Merrick Garland in March on why he had failed to bring forward a single prosecution in connection with these protests.
The justices have had to up security in response and and they requested millions in additional funding from Congress in next year’s budget.
Later in March, Garland explained that he hoped the marshals he had assigned to protect the justices in the wake of the Dobbs leak wouldn’t remain indefinitely.
The Marshals Service is also attempting to increase its budget by tens of millions in order to maintain its protective services, Politico reported.
In that end-of-March budget hearing, Senator Katie Britt (R., Ala.) said that her office had obtained training materials from a whistleblower that the marshals assigned to protect the justices had been discouraged from arresting protestors.
“Avoid, unless absolutely necessary, criminal enforcement action involving the protest or protestors, particularly on public space,” read one bullet point from the materials Britt’s office obtained.
