A prominent legal expert says Senate passage of Sen. Sheldon Whitehouse’s bill to require the Supreme Court to adopt a stronger ethics code could send a powerful message – even if its passage through the current House of Representatives is a likely impossibility.
Sen. Whitehouse, D-R.I., introduced his bill in February 2023 in the wake of ProPublica’s reporting on Justice Clarence Thomas’s long history of accepting gifts and trips from a powerful conservative billionaire friend.
The nine justices announced unanimous opposition to the bill, which has languished since the Democratic-led Senate Judiciary Committee advanced the legislation in July 2023. Republicans in Congress and the Senate predicted the bill would go nowhere.
Still, the Supreme Court ended up adopting an ethics code that legal experts widely derided as unenforceable.
James Sample, a Hofstra University constitutional law professor, said that the public pressure, along with Whitehouse’s bill, had an impact on justices long resistant to adopting such a code.
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He noted that in 2011, Chief Justice John Roberts used his state of the judiciary remarks to dispute the very idea that there was any reason for such a code.
“Do I think that the court should or the Senate should pass the bill? Absolutely," Sample told Salon. "Do I think that it's likely to happen before the election? No, but crazier things have happened. And change is often precipitated by dramatic and easily understandable events. And, you know, if Justice Alito doesn't want Congress to impose an enforcement mechanism, he and Justice Thomas at some level have only themselves to blame.”
Sample said that if the Supreme Court had adopted an enforcement mechanism or honored longstanding norms, "we might not be having this discussion."
"There's at a certain point a dynamic whereby the court by failing to rein itself in, by failing to self regulate in a meaningful way, is presenting really only two options," Sample said. "Either we just accept a Supreme Court that is compromised beyond measure, and where there's no recourse. Or the other branches have a constitutional duty and power to step in and promote due process."
In the wake of The New York Times’ reporting on political flags flown at two Alito residences – including his beach house – Whitehouse is again calling for passage of his bill, which he said would add much-needed teeth.
Legal experts, including University of........