1 00:00:03,560 --> 00:00:09,760 Speaker 1: From Bloomberg News and iHeartRadio. It's the big Take. I'm 2 00:00:09,760 --> 00:00:14,560 Speaker 1: West Casova today. Can Supreme Court justices be trusted to 3 00:00:14,800 --> 00:00:22,320 Speaker 1: oversee themselves? 4 00:00:23,640 --> 00:00:27,319 Speaker 2: But a series of recent reports documenting Justice's failures to 5 00:00:27,360 --> 00:00:30,960 Speaker 2: disclose gifts and real estate deals has sparked questions about 6 00:00:30,960 --> 00:00:35,400 Speaker 2: possible reforms, including luxury vacations for Thomas a portion of 7 00:00:35,400 --> 00:00:36,320 Speaker 2: his wife's salary. 8 00:00:36,440 --> 00:00:37,720 Speaker 3: This was one heck of a trip. 9 00:00:37,760 --> 00:00:40,879 Speaker 2: This is not some fishing trip, a five hundred thousand 10 00:00:40,880 --> 00:00:42,240 Speaker 2: dollars island hopping. 11 00:00:41,960 --> 00:00:45,720 Speaker 4: Which fills the same Conservative activists who paid for Thomas's 12 00:00:45,800 --> 00:00:48,920 Speaker 4: vacations and bought his mother's home also paid for his 13 00:00:49,000 --> 00:00:50,879 Speaker 4: grand nephew's private school tuition. 14 00:00:51,680 --> 00:00:54,200 Speaker 1: For weeks now, the US Supreme Court has been in 15 00:00:54,240 --> 00:00:58,760 Speaker 1: a harsh spotlight after disclosures that raise potential ethics questions 16 00:00:58,800 --> 00:01:03,000 Speaker 1: about some of its members, most notably Justice Clarence Thomas, 17 00:01:03,200 --> 00:01:07,240 Speaker 1: who didn't report lavish vacations and other financial benefits he 18 00:01:07,360 --> 00:01:12,000 Speaker 1: received from a Texas billionaire. And he's not alone. Justice 19 00:01:12,040 --> 00:01:15,640 Speaker 1: Neil Gorsich and even Chief Justice John Roberts have also 20 00:01:15,880 --> 00:01:20,360 Speaker 1: come under recent scrutiny. Some prominent lawyers and legal scholars, 21 00:01:20,400 --> 00:01:23,880 Speaker 1: and members of Congress are now calling for more transparency 22 00:01:24,040 --> 00:01:27,759 Speaker 1: along with stronger oversight of the justices, but the Court 23 00:01:27,959 --> 00:01:29,600 Speaker 1: has forcefully pushed back. 24 00:01:30,120 --> 00:01:33,800 Speaker 4: This makes them again the only judges in the US 25 00:01:34,200 --> 00:01:39,000 Speaker 4: who have unlimited discretion to decide whether they're disqualified in 26 00:01:39,280 --> 00:01:40,759 Speaker 4: a particular case. 27 00:01:41,319 --> 00:01:44,840 Speaker 1: That's Stephen Lubitt. He's a law professor and an expert 28 00:01:44,880 --> 00:01:47,360 Speaker 1: on legal ethics. I talk with him in just a 29 00:01:47,400 --> 00:01:50,560 Speaker 1: bit about what, if anything, the Constitution has to say 30 00:01:50,680 --> 00:01:55,560 Speaker 1: about who has the power to oversee the justices. First Bloomberg, 31 00:01:55,640 --> 00:01:59,760 Speaker 1: Supreme Court correspondent and friend of the Big Take podcast 32 00:01:59,800 --> 00:02:05,640 Speaker 1: Gregg's Store, is back to sort through what's happening. Greg. 33 00:02:05,760 --> 00:02:07,680 Speaker 1: Usually when you come on the show, we're talking about 34 00:02:07,720 --> 00:02:11,280 Speaker 1: thorny issues that are before the justices, and today it's 35 00:02:11,320 --> 00:02:14,120 Speaker 1: kind of odd because we're talking about thorny issues about 36 00:02:14,160 --> 00:02:14,919 Speaker 1: the justices. 37 00:02:15,520 --> 00:02:19,040 Speaker 2: Yeah, it's been quite the season for ethical controversies at 38 00:02:19,040 --> 00:02:22,480 Speaker 2: the Supreme Court, most of which are connected to Justice 39 00:02:22,520 --> 00:02:23,240 Speaker 2: Clarence Thomas. 40 00:02:23,760 --> 00:02:27,480 Speaker 1: So there's Thomas, and then there are also questions surrounding 41 00:02:27,919 --> 00:02:31,519 Speaker 1: Chief Justice John Roberts and also Neil Gorsich, one of 42 00:02:31,600 --> 00:02:33,720 Speaker 1: the newest members of the Court. Can you just walk 43 00:02:33,800 --> 00:02:38,120 Speaker 1: through what the various questions are about each of them. 44 00:02:38,160 --> 00:02:41,280 Speaker 2: Sure, and I would say that certainly the questions about 45 00:02:41,320 --> 00:02:44,360 Speaker 2: Roberts and Gorsich are a much lower tier than the 46 00:02:44,440 --> 00:02:47,760 Speaker 2: questions about Thomas. The John Roberts issue has to do 47 00:02:47,880 --> 00:02:50,360 Speaker 2: with his wife's work. His wife is a lawyer. She 48 00:02:50,480 --> 00:02:53,400 Speaker 2: worked as a practicing attorney before he joined the Supreme Court, 49 00:02:53,560 --> 00:02:56,679 Speaker 2: and then she shifted to become a legal recruiter. And 50 00:02:56,800 --> 00:03:00,600 Speaker 2: so the questions about them have to do with the 51 00:03:00,680 --> 00:03:04,320 Speaker 2: payments to her from firms who do work before the 52 00:03:04,360 --> 00:03:10,120 Speaker 2: Supreme Court. No indication that it is violated INNY established 53 00:03:10,120 --> 00:03:13,200 Speaker 2: ethical rules. And you know, really, some people, when you 54 00:03:13,240 --> 00:03:17,040 Speaker 2: talk to ethics experts, say what Jane Roberts did was 55 00:03:17,080 --> 00:03:19,959 Speaker 2: actually what you're supposed to do. She kind of got 56 00:03:20,000 --> 00:03:22,200 Speaker 2: herself out of the line of fire so that she's 57 00:03:22,240 --> 00:03:26,120 Speaker 2: not working at a law firm that is actually practicing 58 00:03:26,200 --> 00:03:29,040 Speaker 2: before the court. She is instead kind of off to 59 00:03:29,120 --> 00:03:32,120 Speaker 2: the side, serving their interests in a different way. The 60 00:03:32,240 --> 00:03:35,160 Speaker 2: factor on the other side is Jane Roberts is an 61 00:03:35,200 --> 00:03:38,800 Speaker 2: independent person and she has a career. And the questions 62 00:03:38,840 --> 00:03:41,560 Speaker 2: we need to ask are do we want to keep 63 00:03:41,640 --> 00:03:45,240 Speaker 2: a spouse of a justice from pursuing their own career 64 00:03:45,480 --> 00:03:50,560 Speaker 2: because of some you know, somewhat indirect potential for some 65 00:03:50,560 --> 00:03:51,680 Speaker 2: sort of conflict. 66 00:03:52,400 --> 00:03:57,200 Speaker 1: So there's Chief Justice Roberts situation. Neil Gorsich also has 67 00:03:57,240 --> 00:04:00,200 Speaker 1: had some questions about a real estate transaction. 68 00:04:00,480 --> 00:04:03,320 Speaker 2: Right, So this is mountain property that he owned with 69 00:04:03,560 --> 00:04:06,840 Speaker 2: a couple other people that was held in an LLC, 70 00:04:07,440 --> 00:04:11,640 Speaker 2: and he sold that property or the LLC sold that 71 00:04:11,640 --> 00:04:15,160 Speaker 2: property more specifically, and that's important just after he was 72 00:04:15,200 --> 00:04:17,279 Speaker 2: confirmed to the Supreme Court. They'd been trying to sell 73 00:04:17,320 --> 00:04:19,400 Speaker 2: it for a while and had a little trouble finding 74 00:04:19,440 --> 00:04:23,119 Speaker 2: a buyer. It turns out the buyer is somebody who 75 00:04:23,240 --> 00:04:27,880 Speaker 2: is a very successful lawyer, and Justice Gorsag on his 76 00:04:28,000 --> 00:04:31,960 Speaker 2: financial disclosure reports did not indicate who the buyer was 77 00:04:32,080 --> 00:04:35,760 Speaker 2: of this property. Really big questions about whether he needed 78 00:04:35,760 --> 00:04:39,240 Speaker 2: to disclose that particular piece of information. I don't know 79 00:04:39,279 --> 00:04:42,840 Speaker 2: that that is clear. Also not clear that the property 80 00:04:42,880 --> 00:04:45,600 Speaker 2: sold or anything other than the market rate. The buyer 81 00:04:46,120 --> 00:04:48,719 Speaker 2: said he has never actually met Justice Gorsage, and so 82 00:04:49,080 --> 00:04:52,159 Speaker 2: there's some real questions about whether there's anything at all 83 00:04:52,360 --> 00:04:56,080 Speaker 2: to see there other than perhaps that it would be 84 00:04:56,160 --> 00:05:00,600 Speaker 2: nice to have more fulsome disclosure rules, so that might 85 00:05:00,640 --> 00:05:01,479 Speaker 2: have come out earlier. 86 00:05:02,120 --> 00:05:05,520 Speaker 1: So both of these instances really came out after there 87 00:05:05,560 --> 00:05:10,440 Speaker 1: started to be very close scrutiny of the justices when 88 00:05:11,160 --> 00:05:16,760 Speaker 1: these other details started coming out about Clarence Thomas, right exactly. 89 00:05:16,880 --> 00:05:18,960 Speaker 2: I think part of what happened here is that folks 90 00:05:19,000 --> 00:05:22,520 Speaker 2: in the media collectively realized that there's some information in 91 00:05:22,520 --> 00:05:26,080 Speaker 2: these financial disclosure reports that maybe isn't as complete as 92 00:05:26,160 --> 00:05:27,919 Speaker 2: you know, or raises a lot of questions, and so 93 00:05:28,000 --> 00:05:32,159 Speaker 2: folks started looking into various aspects of various justices. And yes, 94 00:05:32,160 --> 00:05:35,120 Speaker 2: we're absolutely right. I mean, what really sparked this all 95 00:05:35,200 --> 00:05:37,240 Speaker 2: was that the first report of the first of now 96 00:05:37,440 --> 00:05:42,919 Speaker 2: several reports in Republica about a wealthy Republican donor, Harlan Crowe, 97 00:05:43,279 --> 00:05:48,040 Speaker 2: paying for very lavish vacations for Clarence Thomas and his wife. 98 00:05:48,080 --> 00:05:50,920 Speaker 1: And tell us about Harlan Crowe and what that relationship 99 00:05:50,960 --> 00:05:52,080 Speaker 1: with Clarence Thomas was. 100 00:05:52,520 --> 00:05:57,359 Speaker 2: He is a Dallas based businessman, real estate developer. He 101 00:05:57,400 --> 00:05:59,920 Speaker 2: says he met Clarence Thomas in nineteen ninety six after 102 00:06:00,279 --> 00:06:03,560 Speaker 2: Justice Thomas joined the court and they became friends and 103 00:06:04,000 --> 00:06:07,960 Speaker 2: for more than two decades they have gone on vacations together, 104 00:06:08,080 --> 00:06:10,960 Speaker 2: including places like Harlon Crow's yachts and you know, exotic 105 00:06:11,040 --> 00:06:14,960 Speaker 2: locations like Indonesia and Clarence. Thomas has not been paying 106 00:06:14,960 --> 00:06:16,799 Speaker 2: for these, and he also had a number of private 107 00:06:16,839 --> 00:06:20,240 Speaker 2: jet trips. This is all documented in the pro public report, 108 00:06:20,680 --> 00:06:24,719 Speaker 2: and very little of this was disclosed in Justice Thomas's 109 00:06:24,760 --> 00:06:26,240 Speaker 2: financial disclosure reports. 110 00:06:26,480 --> 00:06:29,719 Speaker 1: And his argument was that he was not required to 111 00:06:29,760 --> 00:06:33,119 Speaker 1: disclose them because Harlan Crowe didn't have business before the court. 112 00:06:33,480 --> 00:06:36,279 Speaker 2: Yeah, and also because the disclosure rules created an exception 113 00:06:36,360 --> 00:06:39,039 Speaker 2: for personal hospitality, So there's not a whole lot of 114 00:06:39,080 --> 00:06:41,479 Speaker 2: question if he just goes and stays for a weekend 115 00:06:41,480 --> 00:06:43,840 Speaker 2: at Harlan Crowe's house, he doesn't have to disclose that. 116 00:06:44,240 --> 00:06:47,800 Speaker 2: The questions had to do with, well, what if where 117 00:06:47,839 --> 00:06:50,680 Speaker 2: you stayed wasn't actually owned by the individual, it was 118 00:06:50,680 --> 00:06:53,960 Speaker 2: owned by a company. There's some fuzziness to the rules. 119 00:06:53,960 --> 00:06:57,359 Speaker 2: They have since been clarified going forward. But the argument 120 00:06:57,400 --> 00:06:59,760 Speaker 2: that Justice Thomas made was that he said he can 121 00:06:59,800 --> 00:07:02,200 Speaker 2: soul did some of his colleagues and concluded he did 122 00:07:02,200 --> 00:07:03,520 Speaker 2: not have to disclose. 123 00:07:03,120 --> 00:07:07,400 Speaker 1: These about our Bloomberg colleague, Zoe Tillman looked through many 124 00:07:07,480 --> 00:07:11,480 Speaker 1: years of Supreme Court cases and found one where one 125 00:07:11,480 --> 00:07:15,040 Speaker 1: of Crowe's companies did have a case before the court. 126 00:07:15,360 --> 00:07:18,320 Speaker 2: Yeah. So in Justice Thomas's statement after the first pro 127 00:07:18,360 --> 00:07:21,280 Speaker 2: public report, he said Harlan Crowe did not have business 128 00:07:21,280 --> 00:07:23,960 Speaker 2: before the Supreme Court. And what Zoe found was there 129 00:07:24,000 --> 00:07:28,160 Speaker 2: was a case almost two decades ago where Trammel Crow Residential, 130 00:07:28,240 --> 00:07:30,600 Speaker 2: which is a company that travel Crow is the name 131 00:07:30,600 --> 00:07:34,880 Speaker 2: of Harlan Crowe's father, and Harlan Crowe's company owned a 132 00:07:35,080 --> 00:07:38,000 Speaker 2: portion of Trammel Crow, so an interest in the case. 133 00:07:38,200 --> 00:07:39,920 Speaker 2: They actually did have a case at the Supreme Court, 134 00:07:39,960 --> 00:07:42,560 Speaker 2: just a case that the Supreme Court turned away. Travel 135 00:07:42,600 --> 00:07:44,480 Speaker 2: Crowe had won down below. It had to do with 136 00:07:44,560 --> 00:07:47,600 Speaker 2: the rights to these architectural plans. The Supreme Court turned 137 00:07:47,640 --> 00:07:51,360 Speaker 2: it away. No indication that Justice Thomas recused. We have 138 00:07:51,400 --> 00:07:54,360 Speaker 2: no reason to think this was actually seriously discussed at 139 00:07:54,360 --> 00:07:56,760 Speaker 2: the Justices conference or that they had any serious chance 140 00:07:56,800 --> 00:07:58,960 Speaker 2: of taking it up. But it was a case where 141 00:07:59,080 --> 00:08:01,720 Speaker 2: a company connected Darling Crow did indeed have business at 142 00:08:01,720 --> 00:08:02,360 Speaker 2: the court. 143 00:08:02,600 --> 00:08:05,880 Speaker 1: And then there's a separate issue that more recently came 144 00:08:05,920 --> 00:08:09,120 Speaker 1: to light about Crow and Thomas having to do it 145 00:08:09,160 --> 00:08:10,080 Speaker 1: paying for tuition. 146 00:08:11,040 --> 00:08:15,000 Speaker 2: So Clarence Thomas and his wife Ginny raised where Clarence 147 00:08:15,080 --> 00:08:18,560 Speaker 2: was the legal guardian for his grand nephew who had 148 00:08:18,560 --> 00:08:21,680 Speaker 2: a very troubled background, and they took a man at 149 00:08:21,680 --> 00:08:23,880 Speaker 2: a very young age and raised him, and Clarence Thomas 150 00:08:23,880 --> 00:08:26,080 Speaker 2: has said like a son. And so the new report 151 00:08:26,240 --> 00:08:30,280 Speaker 2: says that Harlan Crowe paid for a couple of years 152 00:08:30,280 --> 00:08:35,360 Speaker 2: of tuition for this boy at private schools, including a 153 00:08:35,400 --> 00:08:39,959 Speaker 2: military academy, that also was not disclosed. In a tweet, 154 00:08:40,559 --> 00:08:44,920 Speaker 2: one of Thomas's confidants, Mark Pailetta, a lawyer here in Washington, said, 155 00:08:45,040 --> 00:08:47,520 Speaker 2: A it didn't have to be disclosed, and b this 156 00:08:47,800 --> 00:08:50,600 Speaker 2: was actually an act of extreme generosity on the Thomas's 157 00:08:50,640 --> 00:08:52,960 Speaker 2: part to take this boy in and take care of him. 158 00:08:53,200 --> 00:08:55,920 Speaker 2: And they described it as a left wing smear job. 159 00:08:56,520 --> 00:09:01,120 Speaker 1: And there is yet one more financial transaction between Crow 160 00:09:01,800 --> 00:09:04,840 Speaker 1: and Thomas that has been the subject of some scrutiny. 161 00:09:05,280 --> 00:09:09,320 Speaker 2: Yeah, so Clarence Thomas, he and his some family members 162 00:09:09,360 --> 00:09:12,240 Speaker 2: had some property in Savannah, Georgia. Is a house where 163 00:09:12,240 --> 00:09:15,880 Speaker 2: he grew up and Harlan Crowe bought that property and 164 00:09:16,400 --> 00:09:19,800 Speaker 2: it includes a house where Clarence Thomas's mother still lives 165 00:09:20,200 --> 00:09:23,320 Speaker 2: and Harland Crowe paid for some improvements to the property 166 00:09:23,320 --> 00:09:26,880 Speaker 2: as well built a carport. Again, this is all stuff 167 00:09:26,920 --> 00:09:29,559 Speaker 2: that was not reported by the Justice. 168 00:09:29,880 --> 00:09:33,640 Speaker 1: What is Harlan Crowe said about all of these various 169 00:09:33,640 --> 00:09:34,560 Speaker 1: things that would come to light. 170 00:09:35,200 --> 00:09:39,560 Speaker 2: He has essentially said, I am doing things for a friend, 171 00:09:39,640 --> 00:09:42,240 Speaker 2: that the Thomases are dear friends of mine. In the 172 00:09:42,240 --> 00:09:45,200 Speaker 2: case of the house, I was buying that because I 173 00:09:45,320 --> 00:09:48,040 Speaker 2: thought it would be to create a museum at a 174 00:09:48,080 --> 00:09:51,480 Speaker 2: later point. You know, here's where Supreme Court justice grew up. 175 00:09:51,880 --> 00:09:55,839 Speaker 2: He has in the case of the grand nephew, said, look, 176 00:09:55,960 --> 00:09:59,200 Speaker 2: I have done this for at risk kids a lot. 177 00:09:59,320 --> 00:10:01,640 Speaker 2: I have paid for tuition because that's something that I 178 00:10:01,640 --> 00:10:05,520 Speaker 2: think is important. And he has said I do not 179 00:10:05,679 --> 00:10:08,000 Speaker 2: have any business before the Supreme Court. I am doing 180 00:10:08,040 --> 00:10:08,800 Speaker 2: this as a friend. 181 00:10:09,320 --> 00:10:14,480 Speaker 1: And then there is finally one more question surrounding Clarence Thomas, 182 00:10:14,520 --> 00:10:17,679 Speaker 1: and that's the political work of his wife, Ginny Thomas, 183 00:10:17,720 --> 00:10:22,160 Speaker 1: who is one of the strongest advocates arguing to challenge 184 00:10:22,240 --> 00:10:25,040 Speaker 1: the results of the twenty twenty presidential election. 185 00:10:25,880 --> 00:10:28,640 Speaker 2: Yeah, we almost forget about this because we were so 186 00:10:28,800 --> 00:10:32,000 Speaker 2: engrossed in the money spent by Harlan Crowe. But yes, 187 00:10:32,559 --> 00:10:37,800 Speaker 2: Ginny Thomas, as a conservative activist, was actively encouraging folks 188 00:10:37,840 --> 00:10:41,360 Speaker 2: in the Trump administration, particular Mark Meadows, the Chief of Staff, 189 00:10:41,600 --> 00:10:43,480 Speaker 2: to do more to try to overturn the results of 190 00:10:43,520 --> 00:10:46,400 Speaker 2: the election. Those text messages have been made public. 191 00:10:46,679 --> 00:10:51,079 Speaker 5: I would like to thank a great woman named Ginny Thomas. 192 00:10:51,080 --> 00:10:53,200 Speaker 1: Do you know Jinny Thomas. 193 00:10:53,360 --> 00:10:56,800 Speaker 5: She's a great woman, the wife of a great man, 194 00:10:57,160 --> 00:11:01,120 Speaker 5: Justice Clarence Thomas, for her courage and she said that 195 00:11:01,160 --> 00:11:04,360 Speaker 5: she still believes the twenty twenty election was stolen. She 196 00:11:04,440 --> 00:11:07,480 Speaker 5: didn't wilt under pressure like so many others that are 197 00:11:07,520 --> 00:11:08,600 Speaker 5: weak people and stupid. 198 00:11:08,720 --> 00:11:13,680 Speaker 2: Clarence Thomas has not recused himself from any case related 199 00:11:13,720 --> 00:11:17,120 Speaker 2: to the January sixth riot at the Capitol, including a 200 00:11:17,200 --> 00:11:20,640 Speaker 2: case about whether White House papers that would have revealed 201 00:11:20,640 --> 00:11:23,320 Speaker 2: some of this information about his wife, whether those would 202 00:11:23,320 --> 00:11:26,199 Speaker 2: get turned over to a congressional committee. That's the kind 203 00:11:26,200 --> 00:11:28,880 Speaker 2: of the pre existing controversy before all this other stuff 204 00:11:28,920 --> 00:11:29,640 Speaker 2: came out. 205 00:11:30,040 --> 00:11:33,720 Speaker 1: This all raises this question about what justices are required 206 00:11:33,760 --> 00:11:37,240 Speaker 1: to disclose and what they should disclose, because even if 207 00:11:37,280 --> 00:11:40,440 Speaker 1: they don't run, a follow of any ethics policy that 208 00:11:40,559 --> 00:11:44,000 Speaker 1: is written in some regulation doesn't look so good. 209 00:11:44,480 --> 00:11:47,960 Speaker 2: Yeah, So the Supreme Court alone, among federal judges is 210 00:11:48,000 --> 00:11:51,480 Speaker 2: not found by any code of conduct. There is a 211 00:11:51,520 --> 00:11:53,880 Speaker 2: code of conduct that applies to other judges, and the 212 00:11:53,920 --> 00:11:56,600 Speaker 2: Supreme Court has said we looked at that for guidance 213 00:11:56,600 --> 00:12:00,440 Speaker 2: and we essentially follow it. But there is no enforcement mechanism. 214 00:12:00,840 --> 00:12:04,000 Speaker 2: So if there's an allegation that a Supreme Court justice 215 00:12:04,480 --> 00:12:07,040 Speaker 2: violated the code of conduct that they say they follow, 216 00:12:07,400 --> 00:12:11,240 Speaker 2: there's no way to have that looked at by some 217 00:12:11,280 --> 00:12:14,240 Speaker 2: sort of independent body to determine whether there was a problem. 218 00:12:14,440 --> 00:12:15,440 Speaker 1: They police themselves. 219 00:12:15,559 --> 00:12:17,640 Speaker 2: They essentially police themselves, exactly right. 220 00:12:18,440 --> 00:12:21,720 Speaker 1: A lot of people, particularly Democrats in Washington, are not 221 00:12:21,840 --> 00:12:25,520 Speaker 1: satisfied with the idea that the justices are policing themselves, 222 00:12:25,679 --> 00:12:27,920 Speaker 1: especially because of all of these things that we're talking 223 00:12:27,920 --> 00:12:31,679 Speaker 1: about here, and there has been a push to try 224 00:12:31,679 --> 00:12:35,560 Speaker 1: to impose some ethical standards that the Court itself would 225 00:12:35,640 --> 00:12:38,400 Speaker 1: have to follow. But Chief Justice John Roberts has pushed 226 00:12:38,400 --> 00:12:40,120 Speaker 1: back very forcefully against that. 227 00:12:40,559 --> 00:12:44,080 Speaker 2: Yeah, he really has. When Dick Durbin, the chair of 228 00:12:44,080 --> 00:12:46,320 Speaker 2: the Senate Judiciary Commuty, tried to get John Roberts to 229 00:12:46,320 --> 00:12:47,079 Speaker 2: come testify. 230 00:12:47,480 --> 00:12:50,240 Speaker 3: It is critical to our democracy that the American people 231 00:12:50,280 --> 00:12:55,440 Speaker 3: have confidence that judges cannot be bought or influenced and 232 00:12:55,520 --> 00:12:58,400 Speaker 3: that they are serving the public interest, not their own 233 00:12:58,440 --> 00:12:59,280 Speaker 3: personal interest. 234 00:13:00,080 --> 00:13:02,559 Speaker 2: Roberts not only said no, he did it in a 235 00:13:02,640 --> 00:13:05,280 Speaker 2: letter that didn't really acknowledge there was a problem here. 236 00:13:05,600 --> 00:13:08,240 Speaker 2: He just said, look, chief Justices, don't come testify. You know, 237 00:13:08,320 --> 00:13:12,160 Speaker 2: it's basically never happened in history. And they attached this 238 00:13:12,559 --> 00:13:15,280 Speaker 2: what they called Statement of Ethical Principles and Practices, which 239 00:13:15,360 --> 00:13:19,839 Speaker 2: all nine Justices sign, which basically just regurgitated things that 240 00:13:19,960 --> 00:13:21,920 Speaker 2: he and others have said before this is how we 241 00:13:21,960 --> 00:13:24,680 Speaker 2: do things, and didn't really advance the ball very much. 242 00:13:24,760 --> 00:13:28,960 Speaker 2: So there wasn't a whole lot of acknowledgement or acceptance 243 00:13:29,120 --> 00:13:32,679 Speaker 2: of the notion that maybe another branch of government has 244 00:13:32,720 --> 00:13:33,680 Speaker 2: a legitimate concern. 245 00:13:34,240 --> 00:13:37,880 Speaker 1: John Roberts has always been very protective of the Court's reputation, 246 00:13:38,280 --> 00:13:41,720 Speaker 1: and he's pushed back against charges that the Court is political. 247 00:13:42,200 --> 00:13:44,720 Speaker 1: You would think that, because the justices are the final 248 00:13:44,920 --> 00:13:48,959 Speaker 1: arbiters of constitutional questions, these very weighty matters that come 249 00:13:48,960 --> 00:13:51,959 Speaker 1: before it, that Roberts himself would want to make sure 250 00:13:52,080 --> 00:13:55,080 Speaker 1: that there was no even appearance of something wrong. We 251 00:13:55,080 --> 00:13:56,920 Speaker 1: were talking about the case of his wife, talking about 252 00:13:56,960 --> 00:13:59,960 Speaker 1: Neil Gorsisch, and these are very kind of gray areas. 253 00:14:00,120 --> 00:14:02,480 Speaker 1: Is that they wouldn't want any sort of those questions, 254 00:14:02,480 --> 00:14:04,160 Speaker 1: that they would be beyond approach. 255 00:14:04,880 --> 00:14:06,920 Speaker 2: Well, let me try to be generous towards the Chief 256 00:14:07,080 --> 00:14:10,520 Speaker 2: Justice and say, undoubtedly he's in a very tough spot. 257 00:14:11,120 --> 00:14:14,680 Speaker 2: Whatever he thinks about what Clarence Thomas is doing, he 258 00:14:15,120 --> 00:14:19,360 Speaker 2: really only has two choices. He can defend Clarence Thomas. 259 00:14:20,040 --> 00:14:21,920 Speaker 2: He can come out and criticize him. I guess a 260 00:14:21,920 --> 00:14:23,560 Speaker 2: third choice, he can do what he's doing, which is 261 00:14:23,640 --> 00:14:27,280 Speaker 2: essentially nothing. But neither of those first two choices work 262 00:14:27,440 --> 00:14:29,160 Speaker 2: very well for him. I mean, if he's going to 263 00:14:29,760 --> 00:14:32,960 Speaker 2: come out basically at war with Clarence Thomas publicly, A, 264 00:14:33,120 --> 00:14:35,600 Speaker 2: that's not necessarily going to make the judiciary look any better, 265 00:14:35,640 --> 00:14:39,680 Speaker 2: and B he is potentially really alienating an important colleague. 266 00:14:40,120 --> 00:14:43,200 Speaker 2: And if he defends Clarence Thomas, well, A, he may 267 00:14:43,240 --> 00:14:47,000 Speaker 2: not believe that, and B that probably only makes the 268 00:14:47,040 --> 00:14:47,760 Speaker 2: court look worse. 269 00:14:47,800 --> 00:14:48,680 Speaker 1: He's not doing anything. 270 00:14:48,720 --> 00:14:50,920 Speaker 2: So, you know, the Chief Justice, we call him the 271 00:14:51,000 --> 00:14:53,840 Speaker 2: chief but he's not the boss of the other justices. 272 00:14:54,040 --> 00:14:57,760 Speaker 2: He has a few special roles. He gets the bigger office, 273 00:14:57,800 --> 00:15:00,520 Speaker 2: he's got a couple of ceremonial and maybe he slightly 274 00:15:00,520 --> 00:15:03,920 Speaker 2: not ceremonial roles, but he doesn't have the authority to 275 00:15:04,040 --> 00:15:07,040 Speaker 2: impose something on his own. Now, it's not always crystal 276 00:15:07,080 --> 00:15:08,440 Speaker 2: clear what the chief can do in his own and 277 00:15:08,480 --> 00:15:09,800 Speaker 2: what the Court as a whole has to do. 278 00:15:10,600 --> 00:15:11,200 Speaker 1: I took that. 279 00:15:11,240 --> 00:15:15,560 Speaker 2: Statement that they issued as essentially the best that Roberts 280 00:15:15,600 --> 00:15:18,520 Speaker 2: was able to produce. He got a statement that nine 281 00:15:18,520 --> 00:15:21,720 Speaker 2: of them signed saying, we take ethics very seriously. Here's 282 00:15:21,720 --> 00:15:24,640 Speaker 2: what we do. He may well have wished he could 283 00:15:24,960 --> 00:15:27,160 Speaker 2: get them all to agree to a code of conduct 284 00:15:27,200 --> 00:15:31,320 Speaker 2: in some binding mechanism. The question for him was would 285 00:15:31,320 --> 00:15:34,360 Speaker 2: he want to do that if it wasn't unanimous among 286 00:15:34,400 --> 00:15:36,920 Speaker 2: the justices and if one justice said, you know, I 287 00:15:37,040 --> 00:15:39,240 Speaker 2: disagree with that and I'm not going to follow it. 288 00:15:39,920 --> 00:15:42,680 Speaker 2: Roberts doesn't have a clear way to make that justice 289 00:15:42,840 --> 00:15:44,080 Speaker 2: follow any code of conduct. 290 00:15:44,720 --> 00:15:48,960 Speaker 1: But Greg, would Roberts have to criticize Clarence Thomas or 291 00:15:49,000 --> 00:15:52,760 Speaker 1: other colleagues. Couldn't he have just said, as the Supreme Court, 292 00:15:52,920 --> 00:15:56,080 Speaker 1: we have to be beyond reproach, and so what we're 293 00:15:56,080 --> 00:15:58,720 Speaker 1: going to do is say that we'll follow the same 294 00:15:59,040 --> 00:16:03,680 Speaker 1: ethical guideline that other federal judges have to follow, just 295 00:16:03,720 --> 00:16:05,800 Speaker 1: to make sure that there aren't any of these kinds 296 00:16:05,840 --> 00:16:07,280 Speaker 1: of questions about us. 297 00:16:08,000 --> 00:16:10,600 Speaker 2: So he certainly could have said that. And the word 298 00:16:10,600 --> 00:16:13,320 Speaker 2: I would focus on is the we. When he says 299 00:16:13,360 --> 00:16:16,600 Speaker 2: we are going to do that, does Clarence Thomas agree 300 00:16:16,600 --> 00:16:18,880 Speaker 2: to do that? And if Clarence Thomas doesn't agree to 301 00:16:18,880 --> 00:16:21,400 Speaker 2: do that, what does John Roberts do? It's not all 302 00:16:21,440 --> 00:16:24,960 Speaker 2: that clear. And you know, maybe if he is skillful 303 00:16:25,000 --> 00:16:27,600 Speaker 2: in his relations with his colleagues, maybe he can thread 304 00:16:27,640 --> 00:16:30,520 Speaker 2: that needle. But of course, at the same time he's 305 00:16:30,680 --> 00:16:34,080 Speaker 2: negotiating with them over you know, big cases on firmative action, 306 00:16:34,160 --> 00:16:36,280 Speaker 2: student loans, et cetera, et cetera, et cetera. You know, 307 00:16:36,320 --> 00:16:37,960 Speaker 2: there are a lot of things, a lot of dynamic 308 00:16:38,000 --> 00:16:40,760 Speaker 2: is going on within the Court, and it may be 309 00:16:40,800 --> 00:16:43,200 Speaker 2: that this was just, you know, one consensus that Roberts 310 00:16:43,320 --> 00:16:44,000 Speaker 2: just couldn't build. 311 00:16:44,800 --> 00:16:48,560 Speaker 1: After the break, will Congress step in to impose rules 312 00:16:48,760 --> 00:16:59,880 Speaker 1: on the Supreme Court? Greg As you've said, the Court 313 00:16:59,920 --> 00:17:02,720 Speaker 1: is pushing back against the idea that they should change 314 00:17:02,800 --> 00:17:05,880 Speaker 1: their ethics reporting rules. Do you think that there's any 315 00:17:05,960 --> 00:17:08,720 Speaker 1: chance that Congress will now step in and try and 316 00:17:08,800 --> 00:17:10,840 Speaker 1: do what the Court won't do itself. 317 00:17:11,480 --> 00:17:14,479 Speaker 2: It's hard to imagine Congress will do much in this 318 00:17:14,560 --> 00:17:18,080 Speaker 2: current environment. The current environment being we have a divided 319 00:17:18,359 --> 00:17:21,439 Speaker 2: Congress with Republicans in control of the House, and we 320 00:17:21,480 --> 00:17:24,840 Speaker 2: saw at the recent Senate hearing about these very issues, 321 00:17:24,880 --> 00:17:28,520 Speaker 2: these Supreme Court ethical issues, a lot of Republican pushback 322 00:17:28,600 --> 00:17:32,040 Speaker 2: on the idea that anything at all needed to be done. 323 00:17:32,359 --> 00:17:35,159 Speaker 6: So we can talk about ethics, and that's great, but 324 00:17:35,200 --> 00:17:38,200 Speaker 6: we're also going to talk about today of a concentrated 325 00:17:38,240 --> 00:17:43,240 Speaker 6: effort by the left to delegitimize this court and to 326 00:17:43,400 --> 00:17:45,679 Speaker 6: cherry pick examples to make a point. 327 00:17:46,280 --> 00:17:49,359 Speaker 2: So never say never. We don't know what next story 328 00:17:49,440 --> 00:17:52,520 Speaker 2: might come out and what might change the dynamic. But 329 00:17:52,600 --> 00:17:54,840 Speaker 2: as of right now, the way this is playing out 330 00:17:54,920 --> 00:17:59,480 Speaker 2: in Congress is basically a partisan fight, and with Congress divided, 331 00:17:59,520 --> 00:18:01,080 Speaker 2: it's hard to say see what emerges from it. 332 00:18:01,600 --> 00:18:05,119 Speaker 1: Do you think that these questions being raised about the 333 00:18:05,400 --> 00:18:09,000 Speaker 1: justices themselves, especially in this very political environment, does harm 334 00:18:09,080 --> 00:18:11,760 Speaker 1: to the reputation of the court, that it lowers the 335 00:18:11,760 --> 00:18:14,160 Speaker 1: faith of Americans in the Supreme Court. 336 00:18:14,359 --> 00:18:16,679 Speaker 2: It's hard to see how it doesn't. I mean, certainly 337 00:18:16,800 --> 00:18:19,080 Speaker 2: you look at public opinion polls and you're seeing it. 338 00:18:19,200 --> 00:18:22,560 Speaker 2: The numbers are way down, and this all, of course, 339 00:18:22,640 --> 00:18:25,359 Speaker 2: happens against the backdrop of a court that has become 340 00:18:25,800 --> 00:18:29,480 Speaker 2: much more conservative through Republicans pushing really hard to get 341 00:18:29,480 --> 00:18:32,359 Speaker 2: their nominees confirmed and keep Democratic nominees from being confirmed, 342 00:18:32,440 --> 00:18:35,240 Speaker 2: or at least keeping one Democratic nominee from being confirmed, 343 00:18:35,480 --> 00:18:39,159 Speaker 2: and major decisions, especially the one overturning review Waid and 344 00:18:39,200 --> 00:18:42,040 Speaker 2: the constitutional right to abortion. And so you had this 345 00:18:42,200 --> 00:18:46,600 Speaker 2: sort of pre existing unhappiness with the Coordinates direction among 346 00:18:46,720 --> 00:18:49,359 Speaker 2: a very large segment of the country, and this just 347 00:18:49,560 --> 00:18:50,239 Speaker 2: adds to that. 348 00:18:51,000 --> 00:18:55,320 Speaker 1: And do you think there's any political pressure that would 349 00:18:55,720 --> 00:18:58,480 Speaker 1: lead Clarence Thomas to step down? 350 00:18:59,480 --> 00:19:02,199 Speaker 2: I can not see it, Wes. I mean, you know, 351 00:19:02,240 --> 00:19:04,280 Speaker 2: I was talking to some colleagues about this. You know, 352 00:19:04,320 --> 00:19:06,879 Speaker 2: if we think about like what made Richard Nixon resign, 353 00:19:06,960 --> 00:19:09,760 Speaker 2: what made Abe Fortis, who was a justice when Richard 354 00:19:09,840 --> 00:19:13,760 Speaker 2: Nixon was president, both of those happened when that person 355 00:19:14,080 --> 00:19:17,679 Speaker 2: lost support among members of their own party. Richard Nixon 356 00:19:17,720 --> 00:19:20,840 Speaker 2: resigned in large part because the Barry Goldwaters of the 357 00:19:20,840 --> 00:19:24,760 Speaker 2: world said, mister President, you need to resign. At this point, 358 00:19:24,960 --> 00:19:29,119 Speaker 2: Clarence Thomas has not lost any significant chunk of the 359 00:19:29,200 --> 00:19:33,320 Speaker 2: support he has among Republican members of Congress. And conservatives 360 00:19:33,320 --> 00:19:36,239 Speaker 2: across the country. So until that happens, it's hard to 361 00:19:36,280 --> 00:19:39,200 Speaker 2: see how there's any sort of critical mass of pressure 362 00:19:39,240 --> 00:19:41,679 Speaker 2: that would cause him to think about stepping down. And 363 00:19:41,680 --> 00:19:43,280 Speaker 2: I haven't even mentioned the fact that if he does 364 00:19:43,280 --> 00:19:46,439 Speaker 2: step down, we have a democratic president and a Democratic Senate, 365 00:19:46,480 --> 00:19:48,119 Speaker 2: and that's going to shift the Supreme Court. 366 00:19:48,720 --> 00:19:50,720 Speaker 1: Greg always great talking with you, Thanks for coming on 367 00:19:50,720 --> 00:19:54,400 Speaker 1: the show. My pleasure. Now let's hear from someone who 368 00:19:54,560 --> 00:19:58,640 Speaker 1: has closely studied these questions. Stephen Lubitt is an emeritus 369 00:19:58,640 --> 00:20:02,840 Speaker 1: professor of law at Northwestern University. He's written for years 370 00:20:02,880 --> 00:20:08,560 Speaker 1: about judicial ethics, including the Court's current situation. Steve, I 371 00:20:08,560 --> 00:20:10,320 Speaker 1: think for a lot of people who are seeing what's 372 00:20:10,359 --> 00:20:14,760 Speaker 1: happening now with the Supreme Court, the question is why 373 00:20:14,800 --> 00:20:18,120 Speaker 1: don't Supreme Court justice is who you would think would 374 00:20:18,200 --> 00:20:22,520 Speaker 1: want to be beyond reproach, don't follow the same ethics 375 00:20:22,560 --> 00:20:26,320 Speaker 1: guidelines that every other federal judge in the nation has 376 00:20:26,359 --> 00:20:26,800 Speaker 1: to follow. 377 00:20:27,440 --> 00:20:30,199 Speaker 4: They would claim they follow the same guidelines, they just 378 00:20:30,280 --> 00:20:34,199 Speaker 4: haven't formalized it into a code, which I think is 379 00:20:34,240 --> 00:20:37,080 Speaker 4: sort of silly. The reason they don't have a code 380 00:20:37,119 --> 00:20:39,960 Speaker 4: is just because they don't want to. You know, they're 381 00:20:40,000 --> 00:20:42,240 Speaker 4: the Supreme Court, they get to decide, and they've made 382 00:20:42,240 --> 00:20:46,040 Speaker 4: this decision and they're sticking to it. In nineteen seventy two, 383 00:20:46,080 --> 00:20:49,600 Speaker 4: the American Bar Association published what they called the Model 384 00:20:49,640 --> 00:20:54,440 Speaker 4: Code of Judicial Conduct, setting mandatory standards for judicial conduct 385 00:20:54,600 --> 00:20:57,440 Speaker 4: that they hoped would be adopted across the board by 386 00:20:57,440 --> 00:21:01,960 Speaker 4: American judges. And one of the very first early adopters 387 00:21:02,320 --> 00:21:05,199 Speaker 4: was the Judicial Conference of the United States, which sets 388 00:21:05,200 --> 00:21:09,320 Speaker 4: the policy for all of the lower courts, except, of course, 389 00:21:09,359 --> 00:21:13,080 Speaker 4: the Supreme Court. And since that time, every other court 390 00:21:13,080 --> 00:21:16,120 Speaker 4: in the US state and federal they have all adopted 391 00:21:16,520 --> 00:21:19,800 Speaker 4: some version of the Code of Judicial Conduct. And the 392 00:21:19,840 --> 00:21:23,600 Speaker 4: only holdout is the US Supreme Court. And why they've 393 00:21:23,640 --> 00:21:27,880 Speaker 4: held out they've never actually explained, except they don't want to. 394 00:21:28,200 --> 00:21:31,680 Speaker 4: Being the Supreme Court creates a lot of discretion, and 395 00:21:31,800 --> 00:21:36,240 Speaker 4: so the Constitution doesn't say anything about the requirements for 396 00:21:36,960 --> 00:21:41,399 Speaker 4: justices when it comes to ethics. The Constitution is really 397 00:21:41,760 --> 00:21:46,040 Speaker 4: extraordinarily silent about the Supreme Court. It says there will 398 00:21:46,040 --> 00:21:50,000 Speaker 4: be one Supreme Court, the justices will have life tenure, 399 00:21:50,359 --> 00:21:54,439 Speaker 4: and that their compensation cannot be diminished while they're in office, 400 00:21:54,720 --> 00:21:57,520 Speaker 4: and that's it. That's in Article three you look at 401 00:21:57,600 --> 00:22:02,120 Speaker 4: Article one, which sets up Congress, and it says very specifically, 402 00:22:02,560 --> 00:22:06,359 Speaker 4: each House, Senate, and House will create their own rules 403 00:22:06,359 --> 00:22:09,800 Speaker 4: of procedure and those rules are not reviewable by a 404 00:22:09,840 --> 00:22:13,680 Speaker 4: court because they're committed by the Constitution to each House 405 00:22:13,720 --> 00:22:17,399 Speaker 4: of Congress. The difference is for the Supreme Court, it 406 00:22:17,400 --> 00:22:22,920 Speaker 4: doesn't even exist until Congress creates it, and Congress right 407 00:22:22,960 --> 00:22:25,680 Speaker 4: from the beginning from the Judiciary Act of seventeen eighty 408 00:22:25,760 --> 00:22:29,120 Speaker 4: nine sets the size of the Supreme Court the term 409 00:22:29,359 --> 00:22:33,399 Speaker 4: when it meets the compensation. So, if you're not a 410 00:22:33,440 --> 00:22:37,840 Speaker 4: Supreme Court justice, it's pretty obvious under the Constitution that 411 00:22:37,960 --> 00:22:41,840 Speaker 4: Congress could create a code or require a code from 412 00:22:41,880 --> 00:22:43,040 Speaker 4: the Supreme Court. 413 00:22:43,119 --> 00:22:47,040 Speaker 1: But then again, they're the court. How does it work 414 00:22:47,119 --> 00:22:49,800 Speaker 1: now if you're a Supreme Court justice and there is 415 00:22:49,840 --> 00:22:55,200 Speaker 1: a question about either ethics involving money, or even whether 416 00:22:55,240 --> 00:23:00,120 Speaker 1: a justice should recuse from a case who ultimately decides. 417 00:23:00,280 --> 00:23:05,399 Speaker 4: There is a federal statute that governs disqualification and recusal. 418 00:23:05,640 --> 00:23:08,480 Speaker 4: It's basically the same provisions as in the Code of 419 00:23:08,560 --> 00:23:13,480 Speaker 4: Judicial Conduct. Now, the Supreme Court has never actually conceded 420 00:23:13,960 --> 00:23:17,320 Speaker 4: that they have to follow that statute, but they pretty 421 00:23:17,400 --> 00:23:20,879 Speaker 4: much have or at least they've said that they pretty 422 00:23:20,960 --> 00:23:24,520 Speaker 4: much have. But they have adopted a process in which 423 00:23:24,840 --> 00:23:31,720 Speaker 4: each justice decides alone and unreviewably on their own disqualification, 424 00:23:32,119 --> 00:23:35,359 Speaker 4: so the whole court never sees it, never gets to 425 00:23:35,480 --> 00:23:39,200 Speaker 4: rule on it. This makes them, again, the only judges 426 00:23:39,240 --> 00:23:43,560 Speaker 4: in the US who have unlimited discretion to decide whether 427 00:23:43,640 --> 00:23:49,160 Speaker 4: they're disqualified in a particular case. Just this month, all 428 00:23:49,280 --> 00:23:53,520 Speaker 4: nine justices issued a statement in which they said that 429 00:23:53,720 --> 00:23:59,159 Speaker 4: a justice may, when announcing recusal, give a reference to 430 00:23:59,200 --> 00:24:02,640 Speaker 4: the Relevance Section of the Code of Judicial Conduct. That's 431 00:24:02,680 --> 00:24:04,760 Speaker 4: what they said. Do you know how many times they 432 00:24:04,800 --> 00:24:08,720 Speaker 4: have actually done that? You probably do. The answer is zero. 433 00:24:09,200 --> 00:24:12,600 Speaker 4: They have never done it. So maybe they were making 434 00:24:12,640 --> 00:24:16,200 Speaker 4: the statement going forward that in the future they would 435 00:24:16,240 --> 00:24:21,200 Speaker 4: do it, except that four days later Justice Jackson recused 436 00:24:21,200 --> 00:24:25,639 Speaker 4: herself from a case and gave no explanation, no reference 437 00:24:25,760 --> 00:24:29,040 Speaker 4: to the Code. So how sincere they are about this 438 00:24:29,160 --> 00:24:31,119 Speaker 4: reform is anybody's guests. 439 00:24:32,040 --> 00:24:35,720 Speaker 1: But if there say is a clear conflict of interest 440 00:24:36,280 --> 00:24:39,760 Speaker 1: that a justice may have with a case appearing before 441 00:24:39,800 --> 00:24:43,439 Speaker 1: the court, and that justice just does not recuse him 442 00:24:43,520 --> 00:24:47,679 Speaker 1: or herself, is there any recourse or is it just 443 00:24:47,800 --> 00:24:51,440 Speaker 1: their decision? And after that nothing can be done. 444 00:24:51,880 --> 00:24:56,000 Speaker 4: There is no recourse, it's their decision. After that, nothing 445 00:24:56,040 --> 00:24:59,480 Speaker 4: can be done. Well, you could have impeachment. I suppose 446 00:25:00,040 --> 00:25:02,359 Speaker 4: sort of impeachment. Nothing can be done. 447 00:25:03,600 --> 00:25:06,400 Speaker 1: So what is the solution here if we talk about 448 00:25:06,440 --> 00:25:17,800 Speaker 1: that when we come back, Steve, you mentioned earlier that 449 00:25:17,920 --> 00:25:22,960 Speaker 1: Congress does have an oversight role. What can Congress do 450 00:25:23,200 --> 00:25:27,880 Speaker 1: to impose certain accountability on the Court if the Court 451 00:25:27,880 --> 00:25:29,119 Speaker 1: won't do it itself. 452 00:25:29,960 --> 00:25:34,040 Speaker 4: Well, I think Congress has an oversight role. Congress probably 453 00:25:34,080 --> 00:25:37,040 Speaker 4: thinks they have an oversight role. It's not obvious that 454 00:25:37,080 --> 00:25:40,359 Speaker 4: the Supreme Court is going to grant that or agree 455 00:25:40,400 --> 00:25:45,160 Speaker 4: with that if there is ultimately legislation. But I think 456 00:25:45,240 --> 00:25:48,760 Speaker 4: that Congress could either require the Court to adopt its 457 00:25:48,800 --> 00:25:51,160 Speaker 4: own code, which seems to me to be the most 458 00:25:51,240 --> 00:25:55,440 Speaker 4: sort of compromise solution. The Congress isn't going to dictate 459 00:25:55,480 --> 00:25:57,880 Speaker 4: what the code needs to be. If the Justices think 460 00:25:57,920 --> 00:26:01,679 Speaker 4: they have particular to write it one way or another, 461 00:26:01,760 --> 00:26:04,640 Speaker 4: then they could go ahead and do that. Or Congress 462 00:26:04,680 --> 00:26:08,200 Speaker 4: could create a code. And just as there are financial 463 00:26:08,240 --> 00:26:13,199 Speaker 4: reporting requirements and disclosure requirements under statutes, there could be 464 00:26:13,200 --> 00:26:16,920 Speaker 4: a statute that actually imposes a code I don't think 465 00:26:16,960 --> 00:26:20,000 Speaker 4: there would be much inclination in Congress to do that, 466 00:26:20,359 --> 00:26:23,800 Speaker 4: but I think that's a possibility. And a third possibility 467 00:26:23,800 --> 00:26:27,600 Speaker 4: would be to require the full Court to rule on 468 00:26:27,680 --> 00:26:32,840 Speaker 4: disqualification motions now that one is clearly within congressional authority. 469 00:26:33,240 --> 00:26:36,639 Speaker 4: Instead of each justice deciding by themselves whether or not 470 00:26:36,720 --> 00:26:40,080 Speaker 4: they're disqualified, the motion would be referred to the entire. 471 00:26:39,920 --> 00:26:43,800 Speaker 1: Court when it comes to recusal from cases where justice 472 00:26:43,880 --> 00:26:45,199 Speaker 1: might have a conflict of interest. 473 00:26:45,720 --> 00:26:49,360 Speaker 4: Yeah, exactly. So disqualification is the term that's used in 474 00:26:49,400 --> 00:26:54,119 Speaker 4: the statutes, recusal, it means the same thing. Now that's 475 00:26:54,200 --> 00:26:58,080 Speaker 4: clearly within I think the authority of Congress, because Congress, 476 00:26:58,560 --> 00:27:02,240 Speaker 4: right in the Constitution, can set the jurisdiction of the 477 00:27:02,280 --> 00:27:06,000 Speaker 4: Supreme Court besides what's within and not within Supreme Court 478 00:27:06,119 --> 00:27:09,560 Speaker 4: jurisdiction except for a very narrow band of cases. So 479 00:27:09,800 --> 00:27:13,480 Speaker 4: saying how particular motions are to be handled, I think 480 00:27:13,560 --> 00:27:14,720 Speaker 4: is something Congress could do. 481 00:27:16,600 --> 00:27:20,320 Speaker 1: You said earlier that you aren't sure that the Supreme 482 00:27:20,359 --> 00:27:23,520 Speaker 1: Court would accept Congress's authority, and I think we saw 483 00:27:23,680 --> 00:27:26,119 Speaker 1: a bit of that when Chief Justice Robert sent a 484 00:27:26,200 --> 00:27:29,760 Speaker 1: rather forceful letter to the Chairman of the Senate Judiciary 485 00:27:29,760 --> 00:27:33,240 Speaker 1: Committee saying he wouldn't testify and then saying why he 486 00:27:33,280 --> 00:27:36,680 Speaker 1: wouldn't appear. You've written critically about that. 487 00:27:37,480 --> 00:27:41,360 Speaker 4: Right, I thought the Chief was not being straightforward when 488 00:27:41,400 --> 00:27:44,359 Speaker 4: he said that. He said that only twice had chief 489 00:27:44,480 --> 00:27:48,320 Speaker 4: Justices ever testified. But you know those are precedents, and 490 00:27:49,000 --> 00:27:53,119 Speaker 4: the Senate invitation was actually for the chief or a 491 00:27:53,200 --> 00:27:58,520 Speaker 4: designated associate justice to testify, and Chief Justice Roberts just 492 00:27:58,560 --> 00:28:03,000 Speaker 4: blew right past that Associate Justices have testified almost two 493 00:28:03,119 --> 00:28:06,160 Speaker 4: hundred times in the last sixty years, more than once 494 00:28:06,200 --> 00:28:09,480 Speaker 4: a year, So there's no reason that someone couldn't have 495 00:28:09,560 --> 00:28:10,000 Speaker 4: been there. 496 00:28:10,600 --> 00:28:15,439 Speaker 1: So you've written about judicial ethics for years, you taught it. 497 00:28:16,040 --> 00:28:18,919 Speaker 1: If you were able to say this is what we 498 00:28:18,960 --> 00:28:21,720 Speaker 1: ought to do, what would it be, Well. 499 00:28:21,520 --> 00:28:24,600 Speaker 4: It would be what Senator Tillis said at the recent 500 00:28:24,640 --> 00:28:28,240 Speaker 4: hearing Tom Tellus, Republican from North Carolina. He said, I 501 00:28:28,240 --> 00:28:31,040 Speaker 4: hope the Supreme Court is watching this hearing, and I 502 00:28:31,080 --> 00:28:33,720 Speaker 4: hope they'll take it to heart, and I hope they 503 00:28:33,800 --> 00:28:36,840 Speaker 4: will adopt a code of conduct. Now, I would add 504 00:28:36,880 --> 00:28:39,720 Speaker 4: to that, I hope they would figure out a way 505 00:28:40,240 --> 00:28:45,200 Speaker 4: to make full court rulings on disqualification motions because that 506 00:28:45,240 --> 00:28:50,080 Speaker 4: would give much greater credibility, create much greater public confidence. 507 00:28:51,680 --> 00:28:55,240 Speaker 1: Do you think that given the public attention and political 508 00:28:55,280 --> 00:28:58,960 Speaker 1: pressure on the court that we're seeing now, will actually 509 00:28:59,400 --> 00:29:03,920 Speaker 1: force their hand and that they will adopt some different standard. 510 00:29:04,480 --> 00:29:06,560 Speaker 4: I think if they wanted to change, they would have 511 00:29:06,600 --> 00:29:07,480 Speaker 4: done it already. 512 00:29:08,640 --> 00:29:11,520 Speaker 1: Professor Steven Lubitt, Thanks so much for talking with me. 513 00:29:12,200 --> 00:29:14,480 Speaker 4: It's been a great pleasure, Wes anytime. 514 00:29:17,120 --> 00:29:18,960 Speaker 1: Thanks for listening to us here at The Big Take. 515 00:29:19,160 --> 00:29:22,320 Speaker 1: It's a daily podcast from Bloomberg and iHeartRadio. For more 516 00:29:22,360 --> 00:29:26,320 Speaker 1: shows from iHeartRadio, visit the iHeartRadio app, Apple Podcasts, or 517 00:29:26,360 --> 00:29:28,840 Speaker 1: wherever you listen, and we'd love to hear from you. 518 00:29:29,080 --> 00:29:32,520 Speaker 1: Email us questions or comments to Big Take at Bloomberg 519 00:29:32,520 --> 00:29:35,680 Speaker 1: dot net. The supervising producer of The Big Take is 520 00:29:35,760 --> 00:29:39,880 Speaker 1: Vicky Bergolino. Our senior producer is Katherine Fink. Our producers 521 00:29:39,920 --> 00:29:44,360 Speaker 1: are Michael Falero and Moberrow. Raphael M. Seeli is our engineer. 522 00:29:44,720 --> 00:29:48,640 Speaker 1: Our original music was composed by Leo Sidrin. I'm West Kasova. 523 00:29:48,920 --> 00:29:51,160 Speaker 1: We'll be back tomorrow with another Big Take.