[Congressional Record Volume 169, Number 98 (Tuesday, June 6, 2023)]
[Senate]
[Pages S1966-S1969]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
U.S. Supreme Court
Mr. President, you have all heard the story, I am sure, about the
U.S. Supreme Court and Justice Clarence Thomas. It was published about
6 weeks ago. It turns out that Justice Thomas was receiving lavish
gifts from a Texas billionaire named Harlan Crow.
Harlan Crow and his family made a lot of money in real estate and
other investments. He is pretty well known because, as recently as this
last summer, Harlan Crow had been providing transportation for a
Supreme Court Justice, Clarence Thomas, and his family, and sadly the
Justice failed to disclose that gift as required by law.
The highest Court in the Nation must not have the lowest ethical
standards. Sadly, I am afraid that is the case today. Every Federal
judge in the United States of America is bound by a code of ethical
conduct and a set of ethics rules and enforcement mechanisms--every
single judge in America except for the nine across the street in the
Supreme Court.
It was 11 years ago, February 2012, when I first wrote Chief Justice
Roberts and urged him to address this problem. I urged him to have the
Supreme Court adopt a binding code of conduct that applies to all
Justices, just like every other Federal judge in America. He refused,
and the ethics problem, which was already swirling around the Court a
decade ago, has grown progressively worse.
The Senate Judiciary Committee, which I chair, is currently seeking
information to understand the full extent of the ethical problems in
the Supreme Court because of their lack of a binding code of conduct.
The committee must engage in this work because Chief Justice Roberts
refuses to do what is within his power to do today: adopt a resolution
binding the nine Justices to an enforceable code of ethical conduct,
just like every other Federal judge.
The polling data on the reputation of the Supreme Court tells the
story. It
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has plummeted. People have lost confidence in a Court that is hiding
something as basic as this.
If people with interests before the Court are able to get special
private access to any Supreme Court Justice through gifts or travel or
vacations and giveaways, the American people have a right to know. If
the Court is going to be credible, it has to be transparent. At a
minimum, it creates an appearance of a conflict of interest, if not an
actual one.
The Senate Judiciary Committee has well-established legislative and
oversight authority over the Federal judiciary. It is imperative that
the committee understand how people or parties with interests before
the Court are able to gain influence and access to any Justice.
While we are focused on the ethical conduct of all the Justices, the
revelations about hundreds of thousands of dollars in undisclosed gifts
that Justice Clarence Thomas has received over the past two decades
present the clearest example of the appearance of misconduct that we
must address through legislation.
Late last night, the Senate Judiciary Committee received a second
response from Texas billionaire Harlan Crow to our earlier letters of
May 8 and May 26. Those letters were requests for information about the
lavish gifts he and three companies have provided to Justice Thomas.
Sadly, he has made it clear that he refuses to voluntarily cooperate.
Harlan Crow has based this refusal on a dangerous, undemocratic
argument that information requests of him about these gifts infringe on
the separation of powers between Congress and the Court. This argument
is baseless.
Good news for Harlan Crow: If you check with your lawyers, they will
inform you, you are not a branch of government; you are a private
citizen. You cannot declare that you are standing up for the Supreme
Court and refuse to cooperate with Congress.
That is exactly what he is doing. He is not a member of government.
He is not a government. He is not a branch of government. He is a rich
Texas billionaire who wants friends in high places.
The Senate Judiciary Committee has clearly established authority to
conduct oversight over the ethical crisis of the Court's own making and
to legislate as needed to address it. Let me be clear. All options are
on the table to acquire information. We need to help restore faith in
the conduct of public servants who serve the highest Court in the land.
Mr. President, I ask unanimous consent to have printed in the Record
the latest letter which we have received from Harlan Crow through his
attorneys.
There being no objection, the material was ordered to be printed in
the Record, as follows:
June 5, 2023.
Re: Response to May 26, 2023, Letter to Harlan R. Crow
Hon. Dick Durbin, Chairman,
U.S. Senate Committee on the Judiciary,
Washington, DC.
Dear Chairman Durbin: We write on behalf of Harlan Crow in
response to your letter of May 26, 2023 (the ``May 26
Letter'') responding to our May 22, 2023 letter
(``Response''), which raised serious concerns about your
original request of May 8, 2023 for information regarding Mr.
Crow's friendship with Justice Clarence Thomas. Please note
that CH Asset Company, Carey Commercial Ltd., and Topridge
Holdings, LLC have asked us to respond on their behalves and
we are doing so today. While the concerns we expressed in our
Response about the Committee's investigation remain, we
respect the Senate Judiciary Committee's important role in
formulating legislation concerning our federal courts system,
and would welcome a discussion with your staff.
In our Response, we explained why we believe the Committee
lacks authority to conduct its investigation of Mr. Crow and
Justice Thomas. To reiterate, Congress does not have the
power to impose ethics standards on the Supreme Court. It
therefore cannot mount an investigation for the purpose of
helping craft such standards. The Committee also may not
pursue an investigation for the purpose of targeting and
exposing private facts about an individual. Finally, because
the Committee has requested information about the leadership
of a coequal branch of government--implicating sensitive
separation of powers considerations--it must satisfy a higher
standard in order to establish a valid legislative purpose
for seeking the requested information. On this point, too,
the Committee's investigation comes up short.
The Constitutional Limits on the Committee's Authority Are Clear
In our Response, we explained in detail why Congress lacks
power to impose ethics standards on the Supreme Court. The
fact that Congress has enacted ethics legislation
previously--a point on which the May 26 Letter relies
heavily--is no answer to our concerns. ``[P]ast practice does
not, by itself, create power.'' Medellin v. Texas, 552 U.S.
491, 532 (2008) (quotations omitted). The constitutionality
of the legislation the Committee claims it is crafting must
be assessed on its own terms, not based on whether it is
consistent with other laws, the constitutionality of which
has never been tested.
Nor does Congress's ability to enact laws governing mere
administrative functions of the Supreme Court mean that
Congress also has the authority to take the very different
and more intrusive step of imposing ethics standards on the
Justices. Congress's power to create laws ``necessary and
proper for carrying into Execution'' the provisions of the
Constitution must be ``[read together'' with the precise
contents of those provisions. Bond v. United States, 572 U.S.
844, 874-75 (2014) (Scalia, J., concurring). To do otherwise
would create ``unlimited congressional power'' inconsistent
with the constitutional design. Id. at 877.
Thus, Congress may undertake measures to facilitate Article
III's vesting of judicial power in the Supreme Court, such as
by fixing the number of Justices who serve on the Court above
the constitutional minimum. See U.S. Const. art. III, Sec. 1;
U.S. Const. art. I, Sec. 3, cl. 6; id. Sec. 8, cl. 18. But
fixing the number of Justices is, as this Committee has
recognized in the past, done ``for purely administrative
purposes.'' S. Rep. No. 75-711 at 12 (1937). It is a
ministerial measure to help execute the vesting of judicial
power. It is not a regulation of the exercise of judicial
power, which the Constitution reserves to the judiciary. See
Stern v. Marshall, 564 U.S. 462, 483 (2011) (``[T]he judicial
Power of the United States can no more be shared with another
branch than the Chief Executive, for example, can share with
the Judiciary the veto power.'' (quotations omitted)). And
Congress's ability to enact measures that effectuate the
vesting of judicial power does not imply plenary authority to
enact any and all laws that may be related to the judicial
function. Cf. Gibbons v. Ogden, 22 U.S. 1, 195 (1824) (``The
enumeration presupposes something not enumerated.'').
In stark contrast to a statute fixing the number of seats
on the Supreme Court, an ethics standard would be a
substantive regulation of the conduct of the Justices in both
their official and private lives. It is different in kind
from laws that facilitate the vesting of the judicial power
because it is not ``incidental'' to the basic administrative
functioning of the Court. Nat'l Fed'n of Indep. Bus. v.
Sebelius, 567 U.S. 519, 559 (2012). Nor is an ethics standard
a ``prerequisite'' to the Court's exercise of judicial power.
Patchak v. Zinke, 138 S. Ct. 897, 907 (2018). It is therefore
beyond Congress's authority under the Necessary and Proper
Clause. Further, the May 26 Letter does not identify any
other enumerated power that could possibly support the
enactment of an ethics standard. That means an ethics
standard of any kind, imposed on the Court by Congress, would
be unlawful. See United States v. Morrison, 529 U.S. 598, 607
(2000).
Moreover, even if the Committee could find authority to
legislate on the subject in an enumerated power, any attempt
to enact Supreme Court ethics standards would still run afoul
of the separation of powers. Indeed, this Committee rejected
President Franklin Roosevelt's proposal to expand the number
of seats on the Supreme Court because the proposal would have
``permit[ted] executive and legislative interferences with
the independence of the Court, . . . a permission which
constitute[s] an afront to the spirit of the Constitution.''
S. Rep. No. 75-711 at 12 (1937). Thus, even if a measure like
modifying the number of seats on the Court would ordinarily
be permissible, it cannot be undertaken where it would erode
the ``essential balance created by'' separating ``the
legislative from the judicial power.'' Plaut v. Spendthrift
Farm, Inc., 514 U.S. 211, 221-22 (1995).
The independence of the Court is exactly what is at issue
here. If Congress. were empowered to enact ethics standards
targeting the Justices, that power could readily be used to
coerce or harass them for exercising the judicial power in
ways deemed objectionable by legislators. An ethics standard
imposed by Congress on the Justices would loom over the
Court's independence as an implicit and omnipresent threat
that the political branches may, at any time, ``punish the
Justices whose opinions [they] resent.'' S. Rep. No. 75-711
at 12 (1937). If dissatisfied with a decision, Congress could
amend the standard, effectively giving Congress a ``general
superintending power'' over the Court. Calder v. Bull, 3 U.S.
386, 398 (1798) (Iredell, J., concurring). Likewise, any
enforcement mechanism for such an ethics standard would
further undermine the constitutionally mandated independent
role of the Supreme Court. A code enforced by the Judicial
Conference of the United States, for example, would
impermissibly invert the hierarchy of the judicial
department, placing lower court judges in a supervisory role
over the Supreme Court. Similarly, an ethics code enforced by
executive branch officials would expose the Justices to
potential harassment by political actors. And a
congressionally mandated code that was meant to be enforced
by the Justices themselves would be a
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usurpation by Congress--a command to the Justices to exercise
in a particular way an inherent judicial power that is
reserved exclusively to the Justices' discretion. See
Patchak, 138 S. Ct. at 905 (''The separation of powers, among
other things, prevents Congress from exercising the judicial
power.'').
These risks are particularly acute because of key
differences between the Supreme Court and the political
branches. Both Congress and the President have ample
constitutional powers that can be freely wielded at their
discretion in the course of inter-branch conflicts, such as
Congress's appropriations and impeachment powers, and the
President's veto power and wide-ranging administrative
authority. Both political branches also enjoy the political
support of their respective constituents. By contrast, the
Supreme Court has no political base, no role in the
legislative process, and no authority to control, influence,
or investigate the administration or execution of the laws
outside the context of specific cases or controversies
initiated and pursued by government or third-party litigants.
This relative lack of power and political support vis-a-vis
the political branches renders the Court more vulnerable to
political intimidation. See Nixon v. Adm'r of Gen. Servs.,
433 U.S. 425,441 (1977) (finding separation of powers
concerns reduced because the ``Executive Branch became a
party to the [statute's] regulation'' when the President
signed it into law and where executive officials ``promulgate
and administer the regulations that are the keystone of the
statutory scheme''). Further, unlike lower courts, the
Supreme Court possesses the ultimate power to ``say what the
law is'' for the entire country, Cooper v. Aaron, 358 U.S. I,
18 (1958) (quoting Marbury v. Madison, 5 U.S. 137, 177
(1803)), including the ability to depart from past precedents
where they are ``unworkable or are badly reasoned,'' Payne v.
Tennessee, 50 I U.S. 808, 827 (1991). That gives the Supreme
Court a singularly important place in our system of
government, and makes any impairment of its ``performance of
its constitutional duties'' a unique threat to the
constitutional structure. Loving v. United States, 517 U.S.
748, 757 (1996).
In short, separation of powers principles dictate that each
branch must be ``entirely free from the control or coercive
influence, direct or indirect,'' of the other branches.
Humphrey's Ex'r v. United States, 295 U.S. 602,629 (1935).
Yet permitting Congress to arrogate to itself the power to
impose an ethics standard on the Supreme Court would create a
substantial risk of both direct and indirect coercion of the
Court by the political branches--a risk made all the more
apparent by recent calls to pack the Court or retaliate
against the Justices if they ``go forward'' with certain
decisions. See, e.g., Jess Bravin, Chief Justice John Roberts
Rebukes Chuck Schumer Over `Pay the Price' Comments, Wall
Street Journal (Mar. 5, 2020).
The Constitutional Objections to Imposing Ethics Standards on the
Justices Bar the Committee's Investigation
Given the foregoing considerations, the Committee's
investigation is inconsistent with the Constitution.
Congress's investigative authority extends only to subjects
``on which `legislation could be had.' '' Eastland v. U. S.
Servicemen's Fund, 421 U.S.491, 506 (1975) (quoting McGrain
v. Daugherty, 273 U.S. 135, 177 (1927)). Contrary to the
claims in the May 26 Letter, courts have made clear that, if
an investigation is aimed at crafting a constitutionally
objectionable law, it is not permitted. See Barenblatt v.
United States, 360 U.S. 109, 111 (1959) (``Congress may only
investigate into those areas in which it may potentially
legislate or appropriate.''); see also United States v.
Lamont, 18 F.R.D. 27, 33 (S.D.N.Y. 1955) (``[T]he Supreme
Court has steadfastly held that the congressional power to
investigate is not boundless.''). While an investigation may
be carried out to aid the enactment of a lawful statute--and
may proceed even if it might also be used to help write other
bills that may not withstand constitutional scrutiny--an
investigation is barred where it has no legitimate
legislative objective. See Quinn v. United States, 349
U.S. 155, 161 (1955). That is the case here.
The cases on which the May 26 Letter relies to suggest
otherwise involved circumstances where the court did ``not
know the particulars of any legislation that Congress might
ultimately enact,'' and had ``no reason to conclude . . .
that any legislation in the areas considered by the Committee
would necessarily present a constitutional problem.'' Trump
v. Mazars USA, LLP, 39 F.4th 774, 809 (D.C. Cir. 2022). Here,
by contrast, the Committee's intentions are clear: It seeks
to enact ethics standards for the Supreme Court, and is
considering specific bills to accomplish that goal. See,
e.g., Supreme Court Ethics, Recusal, and Transparency Act of
2023, S. 359, 118th Cong. (2023); Supreme Court Ethics Act,
S. 325, 118th Cong. (2023). It is equally clear that any
ethics standard that Congress requires the Supreme Court to
follow would exceed Congress's authority, for all the reasons
set forth above. The Committee's investigation thus presents
a quintessential example of an impermissible inquiry on a
subject on ``which Congress is forbidden to legislate.''
Quinn, 349 U.S. at 161.
seeking information about a sitting supreme court justice from a
private party further implicates separation of powers concerns, which
impose a heightened standard for showing a legislative purpose
The Committee's requests also cannot withstand
constitutional scrutiny for an additional reason. Because its
requests are aimed at obtaining private information about a
sitting Justice of the Supreme Court, they squarely implicate
the separation of powers, which means the Committee's
investigation must satisfy a heightened standard in order to
establish a valid legislative purpose for seeking the
requested information. But the Committee makes no effort to
meet that heightened standard.
Most importantly, the May 26 Letter mistakenly claims that
the Committee's requests do not implicate the separation of
powers because they ask for the records of ``private
entities, not a coequal branch of government.'' As a matter
of both Supreme Court precedent and common sense, that
distinction is irrelevant. ``The Constitution does not
tolerate such ready evasion; it `deals with substance, not
shadows.' '' Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2035
(2020) (quoting Cummings v. Missouri, 71 U.S. 277,325
(1866)). When, as here, Congress is demanding information
about the leadership of a coordinate branch of government,
the request ``present[s] an interbranch conflict no matter
where the information is held.'' Id. Those ``separation of
powers concerns are no less palpable . . . simply because the
[Letter] w[as] issued to [a] third part[ly].'' Id. The
Committee's requests are plainly aimed at obtaining
information about Justice Thomas and, accordingly, they
trigger the heightened standards that apply to such
interbranch investigations.
Those standards require that congressional requests be ``no
broader than reasonably necessary to support Congress's
legislative objective,'' and that the Committee rely on other
sources for the information it seeks if those ``sources could
reasonably provide [the Committee] the information it
needs.'' Mazars, 140 S. Ct. at 2035-36. The Committee is not
entitled to every piece of conceivably relevant information,
particularly where other sources are available to guide the
Committee's work. The May 26 Letter makes no effort to
explain how the Committee's requests satisfy these standards.
Simply asserting that the information requested from Mr. Crow
``could be helpful in our legislative effort,'' Senator
Richard Durbin, Remarks on the Floor of the United States
Senate (May 30, 2023), fails to meet the standards that
govern when ``separation of powers principles [are] at
stake,'' Mazars, 140 S. Ct. at 2035. It is also apparent that
the Committee has an abundance of information and other
sources to draw upon to inform its legislative efforts
without resorting to intrusive requests for details about
Justice Thomas's private life. See id. at 2036 (``[E]fforts
to craft legislation involve predictive policy judgments that
are not hampered in quite the same way [as are criminal
proceedings] when every scrap of potentially relevant
evidence is not available.'' (quotations omitted)).
The May 26 Letter disclaims any inappropriate focus on
Justice Thomas, based in part on work done in previous
Congresses related to Supreme Court ethics. But the work of
past Congresses is of limited relevance; what matters is what
the Committee is doing today. On this point, the May 26
Letter is clear. It states that ``[t]his year, ProPublica
released not one, not two, but three different reports about
unreported gifts or transactions Justice Thomas has received
from or engaged in with [Mr. Crow].'' No other Justice has
been singled out by name for supposed ethics lapses. The
focus of the Committee's inquiry is unmistakable, and appears
designed to expose Justice Thomas's private affairs ``for the
sake of exposure.'' Watkins v. United States, 354 U.S. 178,
200 (1957). That does not qualify as a valid legislative
purpose.
The Senate Judiciary Committee has often served as a
bulwark of constitutional values in our Republic. In the face
of past efforts to undermine the Supreme Court's
independence, this Committee committed itself to
``maintaining inviolate the independence of the three
coordinate branches of government.'' S. Rep. No. 75-711 at 16
(1937). Respectfully, we ask that the Committee Majority
reassess the partisan course it is pursuing, which has no
place under our Constitution.
Please feel free to have your staff contact me with any
questions concerning this response and to set up a time to
further discuss your requests.
Sincerely,
Michael D. Bopp.
Mr. DURBIN. Mr. President, there are parts of this letter which I
find incredible. We received it late last night.
As I mentioned before, Harlan Crow, the Texas billionaire who gave
hundreds of thousands of dollars of undisclosed gifts to this Supreme
Court Justice over a period of 20 years, now refuses to tell us
anything about what those gifts involved, how much was spent, who was
there, what this was all about. He says he can't tell us that because
we don't have any authority in Congress over that branch of
government--the Supreme Court.
Well, he is wrong about that. It turns out, the ethics laws that we
passed in Congress in years gone by have been upheld by other courts
and followed by them, but it is only one court in the land that has
decided it won't follow
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those standards. The highest Court in the land has decided it will have
the lowest ethical standards.
It is hard to understand. Here is Harlan Crow, the Texas billionaire,
spending all this money on one Supreme Court Justice, saying that we
cannot, in Congress, ask hard questions about the ethical standards of
the highest Court in the land because it would put undue influence on
the Court.
Bottom line: Undue influence is what this is all about. No one should
be able to spend hundreds of thousands of dollars on a Senator, a
Congressman, or certainly a Supreme Court Justice without full
disclosure and compliance with the law.
For the Supreme Court to say that is asking for too much, I think the
American people can draw their own conclusions. They have a right to
know, if Harlan Crow thinks our passing an ethics code for the Supreme
Court would put undue influence on the Court, how does he explain
spending hundreds of thousands of dollars on gifts, trips, on yachts,
and chartered airplanes for a Supreme Court Justice? Is he not seeking
undue influence on the same Court? It is obvious that it is true.
What surprised me after I received this letter--and, once again, was
offended by the logic of it, if there is any--at the end of the day, I
looked online today to find that this attorney, Michael Bopp, is saying
that he made an offer now to meet with the staff of the Senate
Judiciary Committee.
I read the letter for a third time. And I thought, how did I happen
to miss that? Well, it turns out it is the final sentence in the
letter. And I would like to read it to you.
Please feel free to have your staff contact me with any
questions concerning this response and to set up a time to
further discuss your requests.
That, I suppose, is the offer to meet. I am not going to turn it
down. We are going to meet with him if he wishes to discuss this
further.
But before we go any further than that conversation about this
committee, let me make a reference to the bottom line in this
controversy. Chief Justice John Roberts, the person that this Court is
named after, as all Chief Justices are--the Roberts Court has the
authority this afternoon, before 5 o'clock, to announce a resolution to
resolve this issue once and forever, to make sure that the Court steps
away from the sordid affair with the right conclusion. To put a code of
ethics in a standard of ethical conduct in place will bring this Court
into the same world of reality as the rest of the courts in the United
States.
The American people need to have confidence in this Court. And hiding
gifts of hundreds of thousands of dollars, not disclosing, and paying
no price when they are finally discovered is not the way to convince
the American people that the Court is credible.
We are going to continue in the Senate Judiciary Committee to do all
that we need to do to get to the bottom of this controversy. The
American people have a right to believe in this Court, as they do in
this Congress. And we have to do everything under our power to make
sure that happens.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Iowa.