[Congressional Record Volume 169, Number 30 (Tuesday, February 14, 2023)]
[Senate]
[Pages S377-S379]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                           U.S. Supreme Court

  Mr. WHITEHOUSE. Mr. President, I am back today now for the 20th time 
to shed a little light on the dark money scheme to capture and control 
our Supreme Court.
  Part of what allows that scheme to flourish is the ethics-free zone 
around the Supreme Court. It is quite unique. So let's look at it.
  The last time I gave this speech, No. 19, I walked through the 
various problems with how the Supreme Court handles allegations of 
misconduct by the Justices.
  The short answer is that it doesn't.
  The U.S. Supreme Court is the only court in the country not covered 
by an ethics code. And worse than that, it is the only part of the 
Federal Government that has no process for ethics investigation and 
enforcement--none.
  Now, any meaningful ethics regime contains three things: first, a 
process for receiving complaints; second, a process for investigating 
those complaints once they are received; and, third, a process for 
reporting the result and holding powerful people accountable should 
those complaints turn out to be merited.
  The House and the Senate, for instance, we have our Ethics 
Committees. The executive branch has inspector generals and the 
attorney general. The Federal courts, except the Supreme Court, have 
their own investigative procedures. It is just the Supreme Court that 
has none. The closest you get is probably a motion to recuse.
  Let's start with the difficulty of raising ethics complaints with the 
Supreme Court. People who are concerned about ethics violations over at 
the Court have to get pretty creative because the Court has no place to 
submit

[[Page S378]]

an ethics complaint. If you like, there is no inbox.
  We saw this play out when Judge Kavanaugh became Justice Kavanaugh. 
Multiple ethics complaints were pending against Judge Kavanaugh. The 
lower courts, like the DC Circuit that he was sitting on, do have a 
process for receiving complaints and for investigating them; and 
pursuant to that process, a special panel was appointed to review the 
complaints against Judge Kavanaugh.

  But as soon as Judge Kavanaugh squeaked onto the Supreme Court as 
Justice Kavanaugh--poof--the lower courts lost jurisdiction over him, 
and the complaints had to be dismissed mid-investigation.
  Now, the complaints could have been refiled up at the Supreme Court, 
but there was no place to file them.
  We saw the problem again when a man named Robert Schenck sent Chief 
Justice Roberts a letter explaining how he learned, after a donor's 
private dinner with Justice Alito and his wife, how the Supreme Court 
was going to rule in the Hobby Lobby decision.
  Apparently, a letter directly to the Chief Justice isn't a proper way 
to lodge a complaint because Schenck never heard back from the Court.
  Months later, Schenck then went to the New York Times, which was 
following up on an earlier POLITICO story about Schenck's covert 
lobbying campaign to have wealthy rightwing donors invite some of the 
Justices to meals, to their vacation homes, or to private clubs.
  It took the press, the fourth estate, to fill in the investigatory 
gap about that $30 million wining and dining campaign.
  More recently, a former coworker of the Chief Justice's spouse 
alleged ethics problems with the Chief Justice's failure to disclose 
financial connections between his spouse and parties and law firms 
appearing before the Court. With no mechanism to ask the Supreme Court 
to review whether this arrangement presented a conflict, the former 
coworker sent his complaint around to congressional offices in hopes 
that someone might take it seriously somewhere.
  Again, the complaint made it to the fourth estate; and, again, 
without an inbox at the Court or a process, it took journalists to give 
the inquiries an airing.
  Set aside the merits of these complaints, the point is: They never 
got in the door for the Court's consideration. The Court's refusal to 
receive ethics complaints is unique to the Supreme Court, and I submit 
it is not serving the institution well. So even if there were an inbox 
for an ethics complaint, the Court still has no process to investigate 
it.
  Turn back to Mr. Schenck. After the New York Times reported on his 
allegation, there was understandable public uproar.
  Chairman Hank Johnson and I wrote to the Court as Courts subcommittee 
chairs to ask whether it was investigating the allegations. After 
months of silence, amid growing public clamor, the Court did something 
it almost never does: It acknowledged the accusations.
  Mr. President, I have a two-page letter from the Court's legal 
counsel, which I ask unanimous consent to have printed in the Record at 
the conclusion of my remarks.
  In that letter, the Court said the equivalent of: Justice Alito says 
he didn't leak the decision, and that is good enough for us. No mention 
in the letter of the lobbying campaign or of private wining and dining 
and no description of anything resembling an actual investigation.
  I have been the attorney general of my State, a position that has 
criminal jurisdiction across the entire State. Only three attorneys 
general in the country have that; Rhode Island is one of them. I have 
been the United States attorney for my State and led Federal 
investigations. I know a little bit about investigations.
  It is ``investigation 101'' to take statements from witnesses. That 
is how you make a record, and that is how you deter lying: by tying 
people to a statement so they can be held accountable if it turns out 
that the statement is false. No sign in the letter that that was done.
  Same again with Justice Thomas regarding his refusal to recuse 
himself from cases implicating his wife's efforts at overturning the 
2020 election.
  Back in January 2022, Justice Thomas participated as the lone 
dissenter in a decision that allowed the House January 6 Select 
Committee access to records from the Trump White House. And a couple of 
months later, it turned out that Justice Thomas's wife had texted with 
White House officials repeatedly about overturning the 2020 election. 
So she was clearly covered by that investigative effort by the January 
6 Commission.
  He did not recuse; and, indirectly, it was suggested that Justice 
Thomas knew nothing at all about his wife's activity, so he didn't need 
to recuse.
  OK. But that is a fact question. What did Justice Thomas know about 
his wife's activities at the time of the case? Easy to ask him. Easy to 
take a statement from him. But no sign that that was done. So, of 
course, no statement and no consequences.
  Later, after the reporting about Justice Thomas's wife's activities 
came out in the public press and he failed to recuse himself in another 
case, the issue was no longer just a fact question about what Justice 
Thomas knew, he was now on notice about his wife's conduct, and he 
still did not recuse.
  Why not? Again, no justification, no investigation, no conclusion. 
The Court has repeatedly failed to investigate or even acknowledge this 
glaring problem, which brings us to the third element of an effective 
ethics regime: accountability and transparency--a report at the end.
  An investigation ought to be designed to get to the truth and to 
report its findings so that people can be held accountable for 
wrongdoing and the public can have confidence in the outcome.
  That is a statement so obvious I find it hard to believe I actually 
have to say it here about the Court.
  The one investigation we have seen the Supreme Court undertake was 
done in response to the Alito draft opinion leak. As an investigation, 
it was pitiful and marred with conflicts.
  My surmise--my surmise--is that in the heat of the Court's ire about 
the leak, the assumption was made that some clerk or staffer was 
responsible. Chief Justice Roberts directed the Marshal of the Court to 
investigate. He called the leak a ``singular and egregious breach of 
trust that is an affront to the Court and the community of public 
servants who work here.''
  Well, for more than 8 months, the public waited to find out whether 
the Marshal's investigation would live up to the Chief Justice's words.
  In the end, the Court's handling of the Dobbs investigation was a 
case study in how not to conduct a fair and transparent investigation. 
The problems were numerous, not least that the Marshal of the Court 
isn't normally responsible for leading investigations. But the problem 
that really emerged was that some of the prime suspects for the leak 
were her bosses, and the investigation held the Justices to a different 
standard than everyone else at the Court. Everyone else at the Court 
had to sit down for formal interviews, had to turn over their private 
communications, had to sign affidavits under oath, but when it came to 
the Justices, it was different. They were subject to something that the 
Court called an iterative process. I have no idea what an iterative 
process is. I can tell you what it isn't. It isn't an investigative 
process. The Justices even asked questions of their own--some 
statement.
  The premise seems to be that even here, the Justices can never be 
investigated. This was going to be a top-tier investigation as long as 
it looked like it was going to be clerks and staff, but once it looked 
like it might be Justices involved in the leak, suddenly the wheels 
fell off.
  I have never seen an investigation where the investigator called in a 
third party to provide public assurance that they did a good job, like 
a little sidecar running next to the investigation: Yeah, they are 
doing a good job. In this case--worse--it was a third party with 
conflicts of interest, with relationships with obvious suspects and 
with contracts with the Court.
  So if you compare all of that with how misconduct investigations are 
handled everywhere else in the Federal Government, you see some pretty 
big discrepancies. In the executive branch, Congress has established 
inspectors general who are surrounded by professional staff experienced 
in internal investigations. IGs know how to conduct

[[Page S379]]

real interviews and record witness statements. Congress has its own 
internal procedures and investigators for ethics complaints. We have 
our Ethics Committee. The House has its Ethics Committee. Congress set 
up procedures for ethics investigations in the lower courts. They 
exist. Judges are investigated, and people can know where you submit 
your complaint and how that complaint gets investigated.
  The Supreme Court is unique across the entire Federal Government in 
being impenetrable to investigation, from no ethics inbox, to no 
process for reviewing a complaint, to no credible report at the end of 
the day. The highest Court in the land should not be held to the lowest 
standards in government.
  So last week, Congressman Hank Johnson and I, joined by Senator 
Blumenthal and Congressmen Nadler, Quigley, and Cicilline, reintroduced 
our Supreme Court Ethics, Recusal, and Transparency Act. Our bill would 
finally require the Supreme Court to have not just a code of conduct 
but a real process to enforce that code and other Federal ethics laws.
  Our bill would also update judicial ethics laws, ending the ability 
of judges to ignore conflicts of interest and their recusal 
obligations; requiring Justices of the Supreme Court to disclose gifts 
and travel, as other Federal officials do; and exposing the real 
interests appearing at the Court behind amici curiae who lobby the 
Court under fake names.
  Apparently, there has been a halfhearted effort at the Court to begin 
to deal with this. The Washington Post reported last week that the 
Justices discussed for years a binding code of ethics to no result, and 
the effort seems to have fallen apart. So that leaves Congress in the 
position that if they won't fix it, we will.
  There are many problems plaguing our Supreme Court. Far-right, dark-
money interests spent years stacking the Court with their handpicked 
Justices, who in turn have delivered for those interests at every 
available opportunity. We need to undo the damage wrought by the Court 
that dark money built and by those who built it, but we can start--we 
can start--by bringing basic standards of integrity to the Supreme 
Court, standards all other judges follow and standards that govern all 
high-ranking Federal officials across all three branches of 
Government--officials who are paid by taxpayers to serve the best 
interests of the American people.
  To be continued.
  Mr. WHITEHOUSE. I yield the floor.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         Supreme Court of the United States, the Legal Office,
                                Washington, DC, November 28, 2022.
     Hon. Sheldon Whitehouse,
     U.S. Senate,
     Washington, DC.
     Hon. Henry C. Johnson,
     House of Representatives,
     Washington, DC.
       Dear Chairman Whitehouse and Chairman Johnson: I am writing 
     in response to your letter dated November 20, 2022.
       Justice Alito has said that neither he nor Mrs. Alito told 
     the Wrights about the outcome of the decision in the Hobby 
     Lobby case, or about the authorship of the opinion of the 
     Court. Gail Wright has denied Mr. Schenck's allegation in 
     multiple interviews, saying the account given by Mr. Schenck 
     was ``patently not true.'' (Don Wright is deceased.) Justice 
     and Mrs. Alito became acquainted with the Wrights some years 
     ago because of their support for the Supreme Court Historical 
     Society, and they had a casual and purely social 
     relationship. The Justice never detected any effort on the 
     part of the Wrights to obtain confidential information or to 
     influence anything he did in either an official or private 
     capacity. Mr. Schenck's allegation that Justice Alito or Mrs. 
     Alito gave the Wrights advance word about the outcome in 
     Hobby Lobby or the authorship of the Court's opinion is also 
     uncorroborated. Politico reports that despite several months 
     of efforts, the publication was ``unable to locate anyone who 
     heard about the decision directly from either [Justice] Alito 
     or his wife before its release at the end of June 2014.'' The 
     New York Times stated that ``the evidence for Mr. Schenck's 
     account of the breach has gaps.''
       There is nothing to suggest that Justice Alito's actions 
     violated ethics standards. Relevant rules balance preventing 
     gifts that might undermine public confidence in the judiciary 
     and allowing judges to maintain normal personal friendships. 
     Judicial Conference gift regulations provide that a judge may 
     not accept a gift from a person seeking official action from 
     or doing business with the judge's court or whose interests 
     may be substantially affected by the performance or non-
     performance of the judge's official duties, with only limited 
     exceptions. See Guide to Judiciary Policy, vol. 2C, Ch. 6, 
     Sec. 620.35. The Wrights owned a real estate business in 
     Dayton, Ohio, and to our knowledge, they have never had a 
     financial interest in a matter before the Court. In addition, 
     the term ``gift'' is defined to exclude social hospitality 
     based on personal relationships as well as modest items, such 
     as food and refreshments, offered as a matter of social 
     hospitality. Id Sec. 620.25(a), (b). Similarly, Justice and 
     Mrs. Alito also did not receive any reportable gifts from the 
     Wrights. Gifts of less than ``minimal value'' received from 
     one source in a calendar year need not be reported. And gifts 
     do not count toward this threshold if they take the form of 
     food, lodging, or entertainment received as personal 
     hospitality of an individual, or food or beverages which are 
     not consumed in connection with a gift of overnight lodging. 
     See 5 U.S.C. App. Sec. Sec. 102(a)(2)(A), 109(5)(D).
       Very truly yours,
                                                  Ethan V. Torrey,
                                                    Legal Counsel.

  Mr. WHITEHOUSE. I yield the floor.
  The PRESIDING OFFICER. The Senator from North Carolina.