LETTER TO HOUSE AND SENATE JUDICIARY COMMITTEES

December 18, 2019

The Honorable Lindsay Graham
Senate Judiciary Committee
224 Dirksen Senate Office Building
Washington, D.C. 20510

The Honorable Jerrold Nadler
U.S. House Committee on the Judiciary
2138 Rayburn House Office Building
Washington, D.C. 20515

Dear Chairmen Graham and Nadler,

In response to yet another troubling demonstration of naked political partisanship by a Supreme Court justice, I am writing to ask you to immediately require a code of ethics for Supreme Court justices. Justice Neil Gorsuch’s appearance this week on Fox and Friends, one of the most overtly partisan shows on television, threatens to further erode Americans’ trust in the Court.

At a time of deep political division in our country and extraordinary threats to our democracy, it is more critical than ever that Americans retain faith in the Court to protect our rights and the rule of law. However, in recent years, the Court itself has become dangerously politicized. Most egregiously, Senate Republicans packed the Court in 2016, manipulating its size to artificially protect a conservative majority until the election of a Republican president, who then appointed Gorsuch. But as Senator Sheldon Whitehouse has documented, the right-wing politicization of the Court is a long-term strategy—funded by ultrawealthy Republican donors and spearheaded by the Federalist Society. In 73 split-decision rulings since 2005 in which GOP donors had an interest, the Supreme Court voted in the direction favored by the donors 73 times (100%).

Multiple observers have called Fox and Friends President Trump’s “favorite show.” Amid their daily cheerleading for the Trump Administration, the show’s hosts praised the President’s racist call for four American Congresswomen of color to “go back” to where they came from. They have also dismissed impeachment hearings—on which the Supreme Court may need to rule—as a “TV show to get you to think that the president of the United States did something wrong." In joining those same hosts to market his book, Justice Gorsuch has vividly demonstrated the partisan consequences—and intent— behind the Senate Republicans’ power grab. His decision further blurs the line between political operative and impartial jurist.

As you undoubtedly know, the Supreme Court is the only federal court without an ethics code. The code of conduct for other federal judges prohibits “political activity” and states that, “A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment.”

Unfortunately, Justice Gorsuch is hardly the first to push the boundaries of ethical conduct. Last month, Justice Brett Kavanaugh took what some called a “victory lap” at the Federalist Society when he headlined the Republican powerhouse group’s annual gala. Kavanaugh and his colleague Justice Samuel Alito also posed for photos after what appeared to be a private meeting inside the halls of the Supreme Court with leaders of the National Organization for Marriage, an anti-LGBTQ group that has filed briefs in multiple cases that are on the Court’s docket.

Each of these incidents raises genuine questions about the justices’ ability to decide cases impartially. At the very least, they violate the spirit of the Code of Conduct for United States Justices’ admonition that judges must “avoid the appearance of impropriety in all cases.”

The damage to the Court’s credibility inflicted by Senate Republicans’ 2016 power grab cannot be undone without larger, structural reforms. However, requiring the Supreme Court to adopt a code of conduct like that followed by all other federal judges should be a simple and noncontroversial first step. Legislation to that effect has already been introduced, but there is no reason to wait any longer to pass it.

Thank you for your consideration.

Sincerely,

Aaron Belkin
Director, Take Back the Court

Find the full letter here: