Harlan Crow’s Senate rejection could force the Supreme Court to address ethics

Texas billionaire Harlan Crow seldom misses an opportunity to do favors for his “dear friend” Clarence Thomas. So it was hardly surprising when he declined an invitation from the Senate Judiciary Committee to provide the details of his decades-long financial entanglement with the Supreme Court justice and his wife. 

Crow no doubt believed he was helping the Thomases by rejecting the committee’s request, but it turns out that he might have unwittingly created an even bigger problem for the Supreme Court itself. If pursued in litigation, the reasoning behind Crow’s refusal may end up unraveling the justices’ coy deflection of their legal obligation to comply with federal ethics legislation.

Committee chair Sen. Dick Durbin (D-Ill.) had good reasons to request information from Crow. As first reported by Pro Publica, the Republican mega-donor has showered Thomas with lavish gifts for decades, including luxury vacations and the use of a private jet, none of which were listed on the justice’s annual financial report. Likewise undisclosed was Crow’s generous real estate transaction with Thomas, as well as his payment for the expensive private schooling of Thomas’s grandnephew.  

As Durbin’s letter explained, the requested documentation — including “an itemized list of all gifts, payments, and items of value exceeding $415 given by you, or by entities you own or control” — was needed for the committee’s “ongoing efforts to craft legislation strengthening the ethical rules and standards that apply to the Justices of the Supreme Court.” 

Crow’s rebuff, submitted by his attorney, bordered on frivolous, claiming that the Senate lacks “the authority to investigate” his personal friendship with Thomas. According to Crow, the committee’s request, therefore, violated the separation of powers because “Congress does not have the constitutional power to impose ethics rules and standards on the Supreme Court.” 

As many others have pointed out, Congress has often enacted laws that create requirements or set standards for the Supreme Court, beginning with the Judiciary Act of 1789. Congress determines the number of justices, which has fluctuated over the years, prescribes the oath of office, establishes the quorum requirement, sets the time and place of meetings, provides staffing levels and has even required the justices to “ride circuit” (although not since 1911.) 

Current laws specifically governing ethics rules and standards for the Supreme Court include the Ethics in Government Act, which covers outside income and financial disclosure, and the federal disqualification statute, which mandates recusal “in any proceeding in which [the justice’s] impartiality might reasonably be questioned.” It should be obvious that Congress is, therefore, empowered to investigate the need to amend, strengthen or reconsider the scope and effectiveness of existing laws. 

For the past 30 years, the justices have continually waffled on whether they are bound by federal ethics laws. In 1991, they announced that they would voluntarily comply with certain provisions of the Ethics Reform Act, while specifically declining to concede “the validity of the act . . . in whole or in part.”

In his 2011 Year-End Report on the Federal Judiciary, Chief Justice Roberts pointedly noted that the court “has never addressed whether Congress may impose [financial reporting, gift, and recusal] requirements on the Supreme Court.” And earlier this year, the justices’ Statement of Ethics Principles and Practices again stressed the voluntary nature of their compliance with ethics legislation.  

Voluntary compliance is inherently tenuous and always subject to revocation while leaving open its extent or duration. Until now, Congress has been unable to test or challenge the justices’ prickly refusal to acknowledge the binding authority of ethics legislation. There is no way to sue the Supreme Court for ethical equivocation. 

Crow’s obduracy, however, has created an opening for clarifying litigation. In a follow-up letter, Durbin warned Crow that his arguments “lack merit and are insufficient bases on which to decline to provide the information the committee has requested.” He subsequently cautioned Crow that “all options” including a subpoena, “are on the table moving forward,” if the documents are not forthcoming. Sen. Ron Wyden (D-Ore.) issued the same warning on behalf of the Finance Committee. 

If Crow attempts to quash an eventual subpoena, raising the claims he asserted in his letter to the Judiciary Committee, the courts will have no choice but to adjudicate the Senate’s authority to legislate regarding the Supreme Court’s “ethics rules and standards.” Barring capitulation by Crow, such a case could ultimately reach the Supreme Court, presenting the justices with the exquisite predicament of having to rule definitively on their own acceptance of federal ethics legislation. 

Finally called upon, as Roberts put it, to address “whether Congress may impose [ethics] requirements on the Supreme Court,” the justices would have two choices. They could enforce the subpoena, requiring Crow to produce his documents, while implicitly recognizing the validity of “legislation strengthening the ethical rules and standards that apply to the Justices of the Supreme Court.” 

Or they could accept Crow’s argument that Congress lacks “the constitutional power to impose ethics rules and standards on the Supreme Court,” quashing the subpoena and diminishing their own waning legitimacy right along with it.

Steven Lubet is Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law. He is the coauthor of “Judicial Conduct and Ethics” (Fifth edition) and has written many other books.