Week In a Nutshell, 5/5/23

May 5, 2023 | Updated May 17 2023

Week In a Nutshell, 5/5/23

Associate Justice Clarence Thomas sits during a group photo of the Justices at the Supreme Court. (Photo by Erin Schaff-Pool/Getty Images)

Here are some of the legal news stories making headlines this week:

The Senate Judiciary Committee held a hearing on Supreme Court ethics.

For weeks, justices have faced scrutiny for potential ethics violations following a number of news reports. ProPublica reported that Clarence Thomas failed to disclose luxury trips that were gifted to him by a billionaire GOP donor, and Politico reported that Neil Gorsuch failed to disclose the identity of the purchaser in a real estate deal. This week, ProPublica reported that the same billionaire GOP donor, Harlan Crow, paid for Thomas’s grandnephew’s private school tuition. Thomas did not report the tuition payments on his financial disclosures.
The Supreme Court, however, does not have its own ethics code. Committee chair Sen. Dick Durbin (D-IL) called the hearing to pressure the Court to write its own ethics rules or, if the Court does not act, for Congress to write an ethics code for the justices. Durbin said that “It is critical to our democracy that the American people have confidence that judges cannot be bought or influenced, and that they are serving the public interest — not their own personal interest.”
Republicans on the Committee, at points, did agree that the Court should institute an ethics code. However, they criticized Democrats for trying to “delegitimize” the Court. “We can talk about ethics, and that’s great, but we’re also going to talk about today the concentrated effort by the left to delegitimize this Court, and to cherry-pick examples to make a point,” said Committee ranking member Lindsey Graham (R-SC).
Absent from the hearing was Chief Justice John Roberts. Durbin had invited Roberts to testify, but Roberts declined the invitation, citing concerns of “separation of powers” and “judicial independence.”

The Supreme Court granted review in a case that could scale back the power of federal agencies.

The case, Loper Bright Enterprises v. Raimondo, brought by a group of commercial fishing companies, is a challenge to a rule issued by the National Marine Fisheries Service that requires fishing companies to pay for the costs of monitors who ensure that the fishers comply with overfishing regulations.
The issue in the case is simple: should the Court overrule its unanimous decision in the 1984 case Chevron v. Natural Resources Defense Council? The Chevron case stands for the proposition that courts should generally defer to a federal agency’s interpretation of an ambiguous statute as long as the agency’s interpretation is deemed reasonable. As Justice John Paul Stevens wrote in the Chevron opinion, “If the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”
Some current members of the Court’s conservative bloc have since written critically of the Chevron decision. In 2015, Thomas wrote that Chevron “wrests from Courts the ultimate interpretative authority to ‘say what the law is,’ and hands it over to the Executive.” Last year, Gorsuch wrote that the justices “should acknowledge forthrightly that Chevron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law’s meaning in the cases that come before the Nation’s courts.”
The justices are expected to hear oral arguments in the case when the Court’s next term begins in the fall. Justice Ketanji Brown Jackson has recused herself from the case, because she participated in oral arguments when the case came before her as a judge on the D.C. Circuit Court of Appeals.