Washington — Senate Judiciary Committee Chairman Dick Durbin will attempt to unanimously pass legislation on Wednesday that would require the Supreme Court to adopt binding ethics rules amid recent press reports scrutinizing Justice Samuel Alito.
Durbin, an Illinois Democrat, plans to ask for unanimous consent to pass the legislation on Wednesday evening, meaning it can be blocked by opposition from just a single lawmaker. Republicans are all but certain to object.
The bill, introduced by Democratic Sen. Sheldon Whitehouse of Rhode Island, would require the Supreme Court to adopt a binding code of conduct and implement a mechanism for investigating alleged violations of the ethics rules and other laws. It would also require the high court to impose more stringent rules for the disclosure of gifts, travel and income received by the justices and their law clerks.
The proposal cleared the Senate Judiciary Committee in a party-line vote last July, but has not been brought to the floor for a vote, given broad opposition from Republicans.
Whitehouse rolled out the legislation last year in the wake of reporting from the news outlet ProPublica that detailed trips Justice Clarence Thomas took with a Republican megadonor, Harlan Crow, which he did not report on his financial disclosures.
Supreme Court ethics
Jabin Botsford/The Washington Post via Getty Images
The revelations ramped up pressure on the Supreme Court to unilaterally adopt formal ethics rules, which the justices did in November. But the code announced by the high court does not include an enforcement mechanism.
Scrutiny of the ethics practices at the Supreme Court had largely quieted until recently, when the New York Times revealed that an upside-down American flag was flown outside of Alito’s Virginia residence in January 2021, and an “Appeal to Heaven” flag was displayed outside of his New Jersey vacation home last summer.
Both types of flags were carried by rioters who breached the U.S. Capitol on Jan. 6, 2021, and have become associated with the “Stop the Steal” movement.
Alito said in a letter to Durbin and Whitehouse that the flags were flown by his wife, Martha-Ann Alito, and said neither knew the meanings that have been ascribed to them. The justice said the upside-down American flag was flown at a time Martha-Ann Alito was involved in a neighborhood dispute he was not involved in. Alito also said his wife did not fly the “Appeal to Heaven” flag, which dates back to the American Revolution, to associate herself with any group.
Alito was also secretly recorded by a liberal filmmaker at an event held at the high court earlier this month discussing whether it was possible for ideological opponents to find compromise. The audio was posted to social media.
“One side or the other is going to win. I don’t know,” he is heard telling the filmmaker, Lauren Windsor, who pretended to be a Catholic conservative. “There can be a way of working, a way of living together peacefully, but it’s difficult, you know, because there are differences on fundamental things that really can’t be compromised.”
Thomas, meanwhile, included in his latest financial disclosure form an amendment to his report for 2019 that listed two trips taken with Crow to Indonesia and California. The justice said he received food and lodging. The information was “inadvertently omitted at the time of filing,” his report said.
The recording of Alito and Thomas’ disclosure of the trips with Crow amplified the political backlash surrounding the two justices and the court, which has a 6-3 conservative majority.
Durbin’s move also comes amid pressure from the left to take action in response to the ethical controversies that have escalated in recent weeks, with new energy behind the moves to force recusals among the justices and impose enforcement mechanisms for the high court’s new code of conduct. But Senate Democrats have faced fierce opposition in their efforts at every turn amid separation of power concerns between the two branches of government.
The Supreme Court is nearing the end of its current term and is set to hand down major decisions on guns, abortion and federal regulatory power. It will also decide whether former President Donald Trump is entitled to sweeping immunity from federal prosecution for allegedly official acts that occurred while he was in office.
Democrats called on Alito to recuse himself from that case and one other involving the Justice Department’s use of a federal obstruction statute against Jan. 6 defendants, and the justice refused to step aside.
