On April 20, 2023, as a series of deeply-reported journalistic scoops called into doubt the ethical practices of various Supreme Court justices – primarily Clarence Thomas, but others too – the Senate Judiciary Committee invited Chief Justice John Roberts to testify. Senator Dick Durbin wrote to Roberts, “there has been a steady stream of revelations regarding Justices falling short of the ethical standards expected of other federal judges and, indeed, of public servants generally… The status quo is no longer tenable.”
Five days later, the Chief Justice responded by letter to the Senate’s request. Herewith, I offer an annotation detailing what Roberts really meant to say. (Roberts’s original letter is in bold. My reactions are in regular text.)
Supreme Court of the United States
Washington, DC 20543
That’s right, we don’t even have a street address. You know where the hell we are. We’re that big-ass building with the big-ass columns and the portraits of old guys in wigs glaring down at you. Come see us anytime, Senator; you can register for a public tour at our website. (Also, we’re going to use thick, old-timey, curly font for our return address. Because we’re the Supreme Court.)
Thank you for your letter of April 20, 2023.
It made for wonderful kindling.
I must respectfully decline your invitation.
Respectfully, I’m sitting here chuckling at the notion that you Senators actually thought you could make me testify. Let’s do a little role play here. Imagine I said no, and you got all serious and issued me a subpoena. Tough stuff, right? What would happen then? Well, my lawyers would challenge the subpoena in court. Which means it could end up… right back in front of us to decide. Checkmate. Anyway, thanks for the invite, but respectfully: get bent.
Testimony before the Senate Judiciary Committee by the Chief Justice of the United States is exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.
I know what you’re thinking. Noting that separation of powers questions exist and should be addressed and perhaps negotiated is one thing – but us just shutting you down by invoking “separation of powers” is different. You’re right. And also: too bad! (Footnote: I use “judicial independence” here as in “our ability to take six-figure gifts from generous donor-friends without disclosing them to the public and nobody can ask us anything about it.”)
This statement aims to provide new clarity to the bar and to the public on how the Justices address certain recurring issues, and also seeks to dispel some common misconceptions.
You see, the real problem here is that you, dear public, are a bunch of idiots. The issue isn’t that Thomas and other justices have taken exorbitant gifts and payouts from potentially interested parties without disclosing them – it’s that you dolts in the media and the land of grubby commoners misconceive how things work up here. Shame on you. But, because I’m feeling charitable, forthwith I shall provide you with “new clarity.” Behold.
The justices, like other federal judges, consult a wide variety of authorities to address specific ethical issues.
“Consult” is the key word here. Because unlike the other 800-plus federal judges across the country, who are bound by a specific code of ethics, we don’t actually have to follow any rules. Oh, sure: we consult sources (which somehow tell us we can take luxury gifts from potentially interested parties and disclose them to nobody). And while we don’t have to follow any one binding document, we are free to consider and accept or reject guidance from a “wide variety of authorities.” The old take-it-or-leave-it combined with the classic consult-with-everything-bound-by-nothing. Admit it: you’re a little impressed by this artfully evasive double-play.
[The rules in the judicial code of conduct] “are of significant importance to the judges.”
Not just importance – significant importance. Oh no, we won’t commit to follow those rules, like every other federal judge. But, rest assured: they’re important to us. Significantly.
Like-lower court judges, Justices also engage in extrajudicial activities other than teaching, including speaking, writing, and lecturing on both law-related and non-legal subjects.
Other extrajudicial activities include taking free flights on private jets and galavanting on a 162-foot super-yacht with billionaire pals; accepting hidden payments from political advocacy groups to spouses; tipping off high-society buds from a generous lobbying group about upcoming opinions; enjoying a spouse’s receipt of over $10 million in legal consulting fees; and having private school tuition for a relative paid off by others.
In regard to recusal, the Justices follow the same general principles and statutory standards as other federal judges, but the application of those principles can differ due to the unique institutional setting of the Court.
For example, those recusal decisions differ in the sense that Thomas’s wife attended a pro-Trump rally on January 6, texted directly with White House Chief of Staff Mark Meadows about efforts to overturn the election, and pressured state legislators to throw out electoral votes – yet the Justice doesn’t need to recuse from January 6 cases.
[Signed] John G. Roberts, Jr., Clarence Thomas, Samuel A. Alito, Jr., Sonia Sotomayor, Elena Kagan, Neil M. Gorsuch, Brett M. Kavanaugh, Amy Coney Barrett, Ketanji Brown Jackson.
While most of the recent scandals have centered on Thomas (with Gorsuch and Roberts also catching some heat), rest assured: when it comes to the Supreme Court standing utterly beyond reproach and accountability, it’s truly a cross-ideological exercise. Sure, conservatives and liberals may quibble over matters like abortion and guns and voting rights. But if you want to see all nine justices pull together in a heartwarming display of judicial unity, just invite one of us up to Capitol Hill to answer some basic questions about accountability and watch what happens.
Once again: I want to thank you, dear Senators, for your thoughtful invitation to come and testify. I really got a good laugh out of it. Imagine me, the Chief Justice, sitting in front of you and the American public and answering questions. How would that even work? Would you look down at me from the elevated podium? I’d have to answer your questions about how the high Court works? Would I wear my robe? Would there be tv cameras, so the public could watch? It’s all too preposterous to contemplate. Maybe try me again next year – on Opposite Day!
Anyway, it was a nice thought by you. I do recognize that public confidence in the Court is at a historic low – and that was before the recent revelations about our justices rolling in donor cash and lighting cigars with hundreds. But – respectfully – you can all go pound sand.
Note From Elie is part of the free weekly CAFE Brief newsletter.
Sign up free to receive the CAFE Brief in your inbox every Friday: cafe.com/brief