Congress has regulated the Supreme Court for as long as the two institutions have existed. For more than a century, Congress compelled justices to travel around the country to serve as appellate judges, often on horseback. It forced the court to hear certain cases and denied it the ability to hear others. It added and subtracted seats, increased and decreased its budget, and postponed a term to avoid an adverse decision.
According to attorneys for billionaire and GOP mega-donor Harlan Crow, however, there is one thing that Congress is absolutely powerless to do: investigate Justice Clarence Thomas for ethics violations. Crow’s lawyers at Gibson Dunn announced this position in a letter on Tuesday sent in response to Senate Judiciary Chairman Dick Durbin’s own inquiries. Durbin, supported by every Democrat on the Senate Judiciary Committee, had asked Crow to provide more information about Crow’s many lavish gifts to Thomas, including private flights, cruises on a superyacht, and all-expenses-paid trips to luxury resorts. Now Crow has, through his lawyers, refused to comply, declaring that the committee has no constitutional authority to investigate the justice’s alleged ethics breaches.
Their theory boils down to this: Congress can expand or shrink the Supreme Court, stop it from hearing a case or controversy, flood its docket with mandatory appeals, and even send individual justices on thousand-mile journeys in dangerous and dirty conditions to administer the law. But looking into a justice’s decision to accept millions of dollars’ worth of gifts from his billionaire benefactor, then refuse to disclose any of it? That’s just a bridge too far.
Tuesday’s letter was sent by Gibson Dunn’s Michael D. Bopp—who specializes in shielding individuals and corporations from congressional investigations—and purportedly sent on behalf Crow, the company that runs Crow’s private jet, the company that runs Crow’s superyacht, and the company that runs Crow’s Adirondacks resort. In his inquiries, Durbin asserted that he sought information about the Crow-Thomas friendship to help his committee craft ethics rules for the justices. But according to Bopp, “Congress does not have the constitutional power to impose ethics rules and standards on the Supreme Court.” And so, by extension, Congress has no power to conduct investigations necessary to promulgate such rules.
It might come as a surprise to hear that the legislative branch cannot mandate ethics guidelines for SCOTUS given that it already does so: A federal statute requires the justices to disclose most gifts of any real value—indeed, that’s the law Thomas clearly violated when he concealed Crow’s presents from the public. A different statutes compels the justices to recuse from a case any time their “impartiality might reasonably be questioned.” Bopp ignores these statutes and instead offers the familiar imperial defense, recently invoked by Chief Justice John Roberts: Any congressional intrusion on SCOTUS’ affairs would “violate basic separation of powers principles” by encroaching upon “the authority of a coequal branch of government.” Just for good measure, Bopp tossed in the usual persecution claim, accusing the committee of “targeting Justice Thomas for special and unwarranted opprobrium.”
Bopp mounts this sweeping argument against any congressional “interference” with the court’s “internal affairs” to support his broader assertion: Because any ethics code would be unconstitutional, the committee has no right to do the groundwork that would assist it in writing one. Or, put simply: “Harlan Crow says what the law is, and this ain’t it.” You wouldn’t guess it from this letter, but the assumption that Congress cannot impose ethical requirements on SCOTUS is, to put it mildly, hotly contested; it rests on a monarchical conception of the court as somehow above the checks and balances that apply to the legislative and executive branches. In Bopp’s view, SCOTUS gets to dole out these checks to Congress and the president, while refusing to accept any checks on its own (apparently unlimited) power. This view became conventional wisdom among Republicans as soon as they seized a supermajority on the Supreme Court. It is judicial supremacy on an overdose of steroids.
It is also unusually easy to refute here. Despite peppering his letter with quotes from the Constitution, Bopp appears to have forgotten about Article V. This section outlines the amendment process, which begins in Congress. Setting aside the current debate over the constitutionality of an ethics statute, no one seriously argues that Congress could not amend the Constitution itself to impose a code of conduct on the justices. This fact blows up Bopp’s entire theory of the case. Durbin did not specify precisely how his committee intended to proceed with its ethics push, very much leaving open the possibility of an amendment. Would it pass? Not today. Does that matter? Not a whit. Congress needs only a “valid legislative purpose” to justify its investigation. And unless Bopp thinks the Supreme Court is so high above the law that it can block an amendment to its own constitutional authority, that purpose obviously exists here.
There is so much that is aggressively silly in the letter that it’s easy to miss the degree that it also represents a shocking self-own. That’s particularly true when it addresses the alleged persecution against Thomas, which purportedly serves as a standalone reason to ignore Durbin’s requests. Bopp argues is that because this is an impermissible witch hunt directed at the justice, his client Harlan Crow has some correlating freestanding right to thwart that investigation:
It is clear that the Committee’s investigation is part of a larger campaign to target and intimidate Justice Thomas and unearth what the Committee apparently believes will be embarrassing details of the Justice’s personal life. Those goals do not authorize the Committee to conduct a congressional ethics investigation of Justice Thomas.
Bopp is essentially arguing here that Crow’s interests are so closely aligned with those of Thomas that the billionaire cannot be required to disclose what he knows. Again, the logic is self-refuting. Either Crow has the kind of special relationship that means their interests are bound up together—in which case Crow must answer congressional questions—or they do not, in which case he is no different from Thomas’ other buddies. But it is no answer to say that the deeply enmeshed and inappropriately chummy nature of the Crow–Thomas friendship means that Crow is somehow immune from congressional scrutiny. If Crow is implicated enough to get Thomas in ethical hot water, he is implicated enough to say what he knows. And saying what he knows goes beyond telling the Atlantic that the two men talk about sports and the weather and Motown. What Crow seems to be demanding here is something almost akin to spousal privilege, an absurd request.
In the end, Tuesday’s letter boils down to one idea: Harlan Crow is a massively powerful and well-connected billionaire, and no measly congressional committee is going to make him do anything he doesn’t want to. That response certainly aligns with the chief justice’s own vision of total unaccountability. If Durbin’s committee subpoenas and Crow and Bopp challenges it in court, who’s to say what this Supreme Court does. (If Thomas refuses to recuse and casts the decisive vote in his favor, well, that’s just separation of powers in action.) But nobody has any obligation to pretend that Bopp’s gloss on the ancient principle of “you can’t make me” has any basis in constitutional law or common sense.