Chief Justice John Roberts will not testify before Congress about Supreme Court ethics

By Ariane de Vogue, CNN Supreme Court Reporter

Chief Justice John Roberts has notified Senate Judiciary Committee Chairman Dick Durbin that he won’t testify at an upcoming hearing on Supreme Court ethics, instead releasing a new statement signed by all nine justices that is meant to provide “clarity” to the public about the high court’s ethics practices.

The Illinois Democrat had asked Roberts, in a letter, to voluntarily testify in a hearing on Supreme Court ethics set to take place May 2. The request came in the wake of a ProPublica report that found that Justice Clarence Thomas had gone on several luxury trips at the invitation of a GOP megadonor. The trips were not disclosed on Thomas’ public financial filings.

Thomas said in a statement that he had not reported the trips because the ethics guidelines in effect at the time had not required such disclosures.

“I must respectfully decline your invitation,” Roberts wrote in a letter to Durbin, which was released by a spokesperson for the high court Tuesday.

“Testimony before the Senate Judiciary Committee by the Chief Justice of the United States is exceedingly rare as one might expect in light of separation of powers concerns and the importance of preserving judicial independence,” he added.

Without addressing Durbin’s specific concerns over ethics Roberts simply attached a “Statement on Ethics Principles and Practices” to which he said, “All of the current Members of the Supreme Court subscribe.”

In a letter sent Thursday, Democrats on the Judiciary Committee asked Roberts to provide additional details regarding the statement concerning ethics. The Democratic senators asked for a reply by May 1, in advance of the hearing scheduled for May 2.

It was widely expected that Roberts would decline Durbin’s invitation to appear before a separate branch of government to discuss ethics reform.

Durbin responded to the refusal in a statement Tuesday.

“Make no mistake: Supreme Court ethics reform must happen whether the Court participates in the process or not,” Durbin said in the statement.

He also noted that he was surprised that the chief justice had amended his letter with a statement meant to provide “clarity” to the public about how the justices consider ethics issues.

Durbin dismissed the statement as a “recounting of existing legal standards of ethics” and said that Roberts’ suggestion that current law is adequate “ignores the obvious.”

“It is time for Congress to accept its responsibility to establish an enforceable code of ethics for the Supreme Court, the only agency of our government without it,” Durbin said.

New statement on Supreme Court ethics approach

The new statement, signed by all nine members of the court, says that the justices want to provide “new clarity” to the public. It might serve instead, to infuriate critics of the court who will say it falls far short of what is necessary to provide more binding regulations applicable to the justices.

Less than an hour after the court released the statement, for example, Gabe Roth, who runs watchdog group Fix the Court, blasted what he called a “rehashing of things we already knew and found insufficient.”

“Following weeks of scandal, Americans had been seeking some reassurance that nine of the most powerful people in the country understood their responsibility to act above board, avoid corrupting influences and be honest in their dealings and disclosures,” Roth said in a statement.

The newly drafted statement by the court notes that the justices “today reaffirm and restate foundational ethics principles and practices to which they subscribe in carrying out their responsibilities as Members of the Supreme Court of the United States.”

The statement reiterates something that Roberts has stressed before: that the justices “consult a wide variety of authorities to address specific ethical issues.”

“They may turn to judicial opinions, treatises, scholarly articles, disciplinary decisions, and the historical practice of the Court and the federal judiciary” and they “may also seek advice from the Court’s Legal Office and from their colleagues,” the statement says.

Indeed, Thomas in a rare statement on April 7 said that he had turned to the advice of his colleagues when deciding that luxury trips paid for by GOP megadonor Harlan Crow did not need to be disclosed in his yearly financial disclosure reports under the ethics guidelines that were in place at the time.

Last weekend, Durbin released a separate statement noting that Roberts had declined to directly respond to a letter asking him to investigate Thomas’ filings but had referred the letter to the Judicial Conference, which serves as the policy-making body of the federal courts.

Durbin had also included a letter from Judge Roslynn Mauskopf, the secretary of the Judicial Conference, who said that she would send the matter to the conference’s Committee on Financial Disclosure.

But the new statement emphasizes that while the Judicial Conference has a code of conduct that is followed by lower court judges, the conference “does not supervise the Supreme Court.”

The statement does note that in 1991, members of the court “voluntarily adopted” a resolution to follow the financial disclosure requirements and limitations on gifts that apply to all other federal judges.

But when it comes to recusals, the standards are necessarily more restrictive because unlike the lower courts that can freely substitute one district or circuit court judge for the other, the Supreme Court allows only its own members to hear a dispute.

The statement explains why individual justices “rather than the Court” must decide recusal issues.

“If the full Court or any subset of the Court were to review the recusal decisions of individual Justices, it would create an undesirable situation in which the Court could affect the outcome of a case by selecting who among its Members may participate,” it says.

This story has been updated with additional information.

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