Senate Hearing on Judicial Code of Ethics Overshadowed by Supreme Court Leak

WASHINGTON — A Senate hearing Tuesday started as a discussion of a proposed new code of conduct for the U.S. Supreme Court but quickly turned to outrage over a leaked draft copy of a ruling that would overturn most abortion rights.

Republicans and Democrats agreed the leak caused deep damage to the court.

“I don’t care who it is, I don’t care what their politics is, this isn’t right,” said Sen. John Kennedy, R-La., a member of the Senate Judiciary Subcommittee on Federal Courts.

“That person should be prosecuted,” he said about the unidentified person who divulged the draft copy to the news media.

Sen. Richard Blumenthal, D-Conn., said, “The court as an institution I think is gravely imperiled right now.”

They were referring to a first draft of a decision that Justice Samuel A. Alito Jr. wrote that would overturn the 1973 ruling in Roe v. Wade, which granted women a federal constitutional right to abortion.

Alito’s draft ruling in a Mississippi abortion case describes the Roe v. Wade decision as “egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.”

Alito’s draft copy was circulated among members of the Supreme Court in February as they discussed how they would vote on the issue. The final decision is scheduled to be released sometime in June.

The five most conservative members of the court have signaled through previous statements they agree Roe v. Wade should be overturned. Their votes would be enough to outlaw abortion rights on a federal level, thereby turning it over to each state to make their own laws.

Twenty-one states have announced they would ban most abortions if they receive Supreme Court permission.

The draft copy never was intended to be released publicly by an unnamed person at the court who gave it to reporters for Politico. Within hours after Politico published excerpts on its website, protesters gathered outside the Supreme Court.

As investigations into the informant began, legal scholars testified to the Senate subcommittee about a proposed code of conduct for the nine justices.

“I think the leak was highly inappropriate,” said Kedric Payne, general counsel for the government watchdog group Campaign Legal Center, before turning to senators’ questions about a code of conduct. His Washington-based organization advocates for strong enforcement of campaign finance laws.

At the moment, the Supreme Court determines its own code of conduct, which has led to allegations the justices do not police themselves adequately. They make their own decisions under authority of Article 3 of the Constitution, which set up the federal court system as a separate branch of government.

The Supreme Court’s self-regulation has led to accusations from members of Congress that the justices fail to disclose financial or political conflicts of interest and sometimes do not properly recuse themselves.

Last month, House and Senate lawmakers introduced a bill called the 21st Century Courts Act that would require the Supreme Court to adopt specific ethics standards and procedures. It includes recusal and disclosure requirements for justices who have financial or personal associations to cases pending before the court.

Payne said the bill’s goal of adopting ethical standards similar to the legislative and executive branches of government would help to restore trust in the Supreme Court.

“The court has faced many years of allegations of actual and perceived conflicts of interest,” Payne said.

Some Republicans and legal scholars said Congress setting a code of ethics could undermine what the Constitution declares should be the independence of the Supreme Court from political influence.

“Courts are not political institutions,” said Jennifer Mascott, a constitutional law professor at George Mason University in Arlington, Virginia.

She cautioned against legislative intervention, saying, “I think the rules that are in place have been working adequately.”

As the Senate panel met, the political debate shaping up a few blocks away at the Capitol, the White House and outside the Supreme Court was even more intense.

It included a comment from President Biden, who said in a statement, “I believe that a woman’s right to choose is fundamental, Roe has been the law of the land for almost 50 years, and basic fairness and the stability of our law demand that it not be overturned.”

Rep. Alexandria Ocasio-Cortez, D-N.Y., sent a tweet Monday saying, “As we’ve warned, SCOTUS isn’t just coming for abortion — they’re coming for the right to privacy Roe rests on which includes gay marriage + civil rights.”

Chief Justice John Roberts verified the draft decision was authentic but described the leak as a betrayal of trust by his staff. He directed the court’s marshal to “launch an investigation into the source of the leak.”

Suspicion is focusing on one of the court’s 36 law clerks. Politico is refusing to name the source.

Tom can be reached at [email protected] and at https://twitter.com/tramstack