Government and Politics
November 29, 2022
In new letter, SCOTUS legal counsel ignores important questions about need to limit far-right influence campaign targeting Republican-appointed justices
Washington, D.C. – U.S. Senator Sheldon Whitehouse (D-RI) and Congressman Hank Johnson (D-GA-04), Chairmen of the Senate and House Judiciary Courts Subcommittees respectively, are responding to a new letter from the legal counsel for the Supreme Court. The Court’s response comes after Whitehouse and Johnson wrote to the Supreme Court last week calling for answers to basic questions about apparent ethical lapses related to an outside influence campaign targeting Republican-appointed justices. The scheme was exposed by recent reporting in Politico, Rolling Stone, and the New York Times.
“Through legal counsel, the Supreme Court reiterated Justice Alito’s denials but did not substantively answer any of our questions. The Court’s letter is an embodiment of the problems at the Court around ethics issues. Unlike all other federal courts, there is no formal process for complaints; it took a Senator’s and a Congressman’s repeated letters to galvanize a response. Unlike all other federal courts, there is no formal process for fact-finding inquiry. The assertions of fact by the Court’s lawyer emerge from darkness, and overlook important facts like all the contemporaneous evidence that Mr. Schenck in fact knew both the outcome and author in advance and acted at that time on that knowledge. Unlike all other federal courts, there is no independence — no formal process of independent review. That absence of independence violates the ancient maxim, nemo judex in sua causa: no one should judge their own cause. These multiple failures of orderly process are peculiar, coming from the highest Court in the land. Procedure is the bone structure of justice,” Whitehouse and Johnson said in response to the new letter.
In September, Whitehouse and Johnson sent a letter to Chief Justice Roberts requesting information about the lobbying effort, referred to as “Operation Higher Court,” orchestrated by right-wing religious group Faith and Action to influence the justices. In an early November response to the Chairmen, the Court’s legal counsel did not substantively address their questions and made no mention of Faith and Action. That letter is available here.
Following the Court’s letter, a New York Times report revealed how Faith and Action sought to sway the justices and was able to gain advance knowledge of the Court’s decision in a key reproductive rights case. Whitehouse and Johnson responded to the reporting with another letter reiterating their previous calls and asking new questions of Chief Justice John Roberts and the Supreme Court’s legal counsel, including whether the allegations regarding Faith and Action have been investigated internally and whether the Court has reevaluated any of its procedures related to judicial ethics.
Earlier this year, Whitehouse and Johnson introduced the Supreme Court Ethics, Recusal, and Transparency Act to enact stronger recusal standards, require the Court to adopt a binding code of conduct, and mandate the Supreme Court adopt more robust rules governing disclosure of gifts and travel paid for by outside parties. The bill would also require disclosure of the identity of funders of amicus briefs, and block amicus filers from making gifts or providing travel to court of appeals judges or Supreme Court justices.