[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

[[Page S1967]]

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

[[Page S1968]]

     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

[[Page S1969]]

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.