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If the Supreme Court does not take such action, he cautioned, Congress has “the power under the Constitution” to prescribe ethical standards of conduct for the court.
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In 1991, Luttig was part of the team that prepared Justice Clarence Thomas for his controversial Senate confirmation hearings. Before that, he clerked for then-Chief Justice Warren Burger, as well as for former Supreme Court Justice Antonin Scalia when he sat on the US Court of Appeals for the DC Circuit. Luttig additionally was known as one of the top “feeder judges” on the court of appeals, sending 45 of his 47 clerks to clerk for justices on the Supreme Court.
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Considered a conservative legal heavyweight, Luttig’s willingness to weigh in is notable. He previously made headlines for histestimony to the House select committeethat investigated January 6, 2021, where he stated that former President Donald Trump had tried to overturn the election and that “Trump and his allies and supporters are a clear and present danger to American Democracy.”
Luttig writes in the new letter to the Senate that binding a code of conduct for the justices “ought not be thought of as anything more – and certainly nothing less – than the housekeeping that is necessary to maintain a Republic.” Tribe also writes that Congress had the power to enact ethics rules for the court that would address the justices’ non-judicial conduct. Both legal experts, however, take the view that while Congress can impose a code of conduct on the justices, it cannot command the Supreme Court to write one for itself.
“I am not insensitive to the delicacy of the political choices Congress would be required to make in order to decide what limits to impose on how the Justices conduct themselves with respect to accepting favors from individuals and groups with business before the Court or with interests in the outcome of that business and on how transparent Justices must be in the way they lead their lives outside the Supreme Court itself and outside the performance of its judicial tasks,” Tribe writes. But, he says, given the mandates of the Constitution, such policy choices are “one buck Congress cannot pass.”
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“We cannot excuse what has been reported already about Justice Clarence Thomas. The yacht trips to Indonesia sponsored by a billionaire in Texas, the Gorsuch real estate transaction have raised serious questions about whether things went unreported,” Durbin, a Democrat from Illinois, told 【 - Free Access to Community 】’s John Berman on Monday.
“This sort of thing is unacceptable in every branch of our government, at every level of the courts, save the nine men and women serving on the Supreme Court,” Durbin added.
Chief Justice John Robertsturned down an invitationto appear at the hearing, and last week, released a “Statement on Ethics Principles and Practices” – signed by all nine members of the court – which the justices said they were providing to offer “new clarity” to the public.
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Ethics proposals for the Supreme Court, as well as lower court judges, have floated around Capitol Hill for years. The latest proposal was introduced last week by Republican Alaska Sen. Lisa Murkowski and Sen. Angus King, an independent from Maine who caucuses with Democrats. It would require the Supreme Court to, within a year, to adopt of conduct but leaves it up to the justices to decide what that code looks like. Other Democrats are advocating for an ethics rider to be attached to the annual appropriations legislation Congress will pass to fund the federal judiciary next year.
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“I’m not going to support any changes to laws regarding the Supreme Court, unless and until we get real protection for the justices and their families from this ongoing harassment,” Sen. Josh Hawley, a Missouri Republican who sits on the Judiciary Committee, told 【 - Free Access to Community 】 last week.
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Luttig, meanwhile, stops short of endorsing the position that Congress should act. Instead, he stresses that the Supreme Court should take steps on its own to ensure the public never has reason to question the ethics of the justices.
“Thus, there should never come the day when the Congress of the United States is obligated to enact laws prescribing the ethical standards applicable to the non-judicial conduct and activities of the Supreme Court of the United States, even though it indisputably has the power under the Constitution to do so, but paradoxically, does not have the power to require the Court to prescribe such standards for itself,” Luttig argues. “But if that day were ever to come, it would hardly be a constitutional crisis or anything of the sort. ”
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