Senate Democrats are facing growing pressure from the left to investigate ethics at the Supreme Court but say their options are limited given the court’s independence and Republican opposition.
Following Supreme Court Chief Justice John G. Roberts Jr.’s rejection of a petition asking Justice Samuel A. Alito Jr. to recuse himself from a pending case regarding President Donald J. Trump’s immunity from liability for the January 6 attack on the Capitol and all actions leading up to it, advocacy groups and progressives are stepping up their calls for Senate Democrats to take a more aggressive stance.
Democratic leaders on the Judiciary Committee called on Justice Alito to recuse himself from the cases after reports emerged that two flags linked to the “Stop the Steal” movement had been displayed in front of his home. The judge refused to recuse himself, blaming his wife for the flags being there.
Earlier this week, a coalition of liberal groups and House Democrats called on the Senate to open an investigation into Justice Alito’s conduct, with activists arguing the Senate needs to stop acting as if it is powerless.
The Oversight committee’s two top Democrats, Reps. Jamie Raskin of Maryland and Alexandria Ocasio-Cortez of New York, have scheduled a roundtable discussion on the issue next Tuesday that will explore a range of controversies surrounding the Supreme Court, including unreported gifts and travel to justices and how that impacts the court’s agenda.
“Our entire nation is in the midst of a grave ethical crisis,” Raskin said in a statement. “Our democracy, our voting rights, our fundamental rights are at stake, and everything we have fought for and won is in jeopardy because of this out-of-control court.”
Senate Democrats are struggling with how to respond to an ethics dispute involving the Supreme Court, citing its members’ refusal to negotiate with them and fierce opposition from Republicans who criticize the Democratic effort as a partisan effort to undermine the credibility of the conservative-majority court.
“We have to remember that the Justice Department is a separate branch of government and has its own powers,” said Sen. Richard J. Durbin of Illinois, the No. 2 Senate Democrat and chairman of the Judiciary Committee. “There is precedent for what we can and cannot do.”
He added that the work of independent media and the commission had given the public a “clear understanding of some of the unethical behaviour of several judges.”
After a heated debate last November, the Judiciary Committee, in a tough bipartisan vote, approved subpoenas for two conservative supporters of the Supreme Court that would have compelled them to testify about their travels with and influence over the justices. But the committee has not moved forward with the subpoenas.
Democrats worry that if they cannot muster even a majority of senators to enforce a subpoena targeting the Supreme Court or Justice Alito himself, let alone the 60 votes needed to overcome procedural objections, it will put them in an even weaker position and undermine the subpoena power of the Senate as a whole.
“The people who say, ‘Issue a subpoena,’ haven’t even read the Senate rules,” Durbin said. “All it takes is 60 votes, that’s all. 60 votes.”
Democrats also worry that an escalating conflict with the Supreme Court could lead Republicans to stop cooperating with Democratic efforts to match or exceed the Trump administration’s goal of confirming 234 federal judges over four years — about 34 more justices needed to surpass that threshold, a goal that could be jeopardized if Republicans choose to retaliate.
Earlier this week, Sen. Mitch McConnell, a Republican from Kentucky and the House Minority Leader, accused Democrats of potentially being unethical in lobbying the Supreme Court chief justice to force Alito to resign or face some other sanctions.
“This goes beyond the typical shameful bullying perfected by my Democratic colleagues,” he said. “The resignations are a judicial act. These senators are privately telling the chief justice of the Supreme Court to change the court for pending cases.”
Despite the procedural obstacles, progressive judicial activists said the situation is serious and Democrats should consider norm-breaking action to force the Senate to confront ethical questions at the Supreme Court and hold justices accountable.
“We are facing the biggest judicial corruption crisis in the history of our nation, yet the Senate Judiciary Chairman is acting as if he can’t do anything,” said Alex Aronson, executive director of the Office of Court Accountability and a former Senate Democratic general counsel. “Durbin can subpoena these judges and force tough floor votes to enforce the subpoenas or file criminal charges against recalcitrant targets.”
Democrats have been a long way from taking such action, but Sen. Chuck Schumer, a New York Democrat and majority leader, said he has discussed “the best way forward” with Mr. Durbin and others. One option would be to force a vote on a Supreme Court ethics and challenge bill by Sen. Sheldon Whitehouse, a Rhode Island Democrat, but that is unlikely to defuse criticism or overcome Republican opposition.
Some Democrats say they understand the frustrations on the left.
“We’re not doing enough,” said Sen. Peter Welch, a Vermont Democrat and member of the Judiciary Committee. “The question is not whether we want to do more. The question is, can we do more when Republicans are united in their opposition? That’s the real challenge.”
Whitehouse, who has long argued that the Supreme Court’s conservative wing has been bought off, said Democrats are moving forward despite the criticism, rallying support for a Supreme Court reform bill, focusing public scrutiny on the court and pursuing an investigation in the Finance Committee that is examining the tax implications of donations to the Supreme Court.
“My approach is slow, steady and persistent,” Whitehouse said, “and we’re making significant progress.”
He noted that upcoming rulings on Jan. 6 and President Trump’s immunity could further bolster Democratic support.
“This decision really makes the conflict of interest real,” Whitehouse said. “At this point, it’s somewhat theoretical. I have a MAGA battle flag in my house, and I blame my wife for it. What are the implications?”
“Well,” he said, “the impact comes when you make a decision.”
