Democrats Give Supreme Court Chief Justice John Roberts An Ultimatum

Top Democrats on the House and Senate Judiciary Committees demanded on Sunday that Supreme Court Chief Justice John Roberts comply with their investigation into the court’s refusal to abide by ethics laws.

And if the court continues to suggest it’s not serious about policing itself, Congress will step in, warned the joint letter from Sen. Sheldon Whitehouse (D-R.I.), and Rep. Hank Johnson (D-Ga.), chairs of the subcommittees overseeing the federal judiciary in their respective chambers.

“If the Court … is not willing to undertake fact-finding inquiries into possible ethics violations that leaves Congress as the only forum,” they wrote.

The letter came a day after The New York Times reported that Justice Samuel Alito leaked the outcome of a 2014 decision in the case of Hobby Lobby v. Burwell. Alito reportedly spoke about the decision ahead of its release to Supreme Court Historical Society donors who were part of an influence operation led by a former conservative evangelical leader, Rev. Rob Schenck.

The two lawmakers firmly stated Congress’ right to investigate the court and demanded Roberts provide information related to the influence operation run by Schenck through his Faith & Action group.

They also demanded information about Schenck’s letter to Roberts in July disclosing that he learned about the Hobby Lobby outcome days before it came down from one of his volunteers after she attended a dinner with Alito and his wife. Schenck sent his letter as part of the court’s investigation into the leak of the Dobbs v. Jackson Women’s Health Organization decision that overturned Roe v. Wade. Alito, who authored both the Dobbs and Hobby Lobby decisions, denied leaking the Hobby Lobby outcome.

Whitehouse and Johnson asked Roberts to identify the individuals or offices involved in investigating any element of the influence campaign or Schenck’s allegations about Alito. It also asked him to identify those in charge of “policing the relationship between the Supreme Court and the Supreme Court Historical Society to ensure that paid membership in the Society is not used as a means of gaining undue influence.”

In a sign that their investigation is moving towards hearings, the two lawmakers stated that the court should “designate an individual knowledgeable about” these issues “to provide testimony to us about … issues related to ethics or reporting questions raised about justices’ conduct.”

Their letter to Roberts on Sunday followed up on a prior inquiry Whitehouse and Johnson made on Sept. 7 after Politico first reported on Schenck’s influence campaign. At the time, they wrote to Roberts to encourage the court to adopt a formal ethics code. They demanded answers about how many justices were provided travel, dinners, lodging and other hospitality from donors connected to Schenck’s influence operation and why the justices did not disclose these gifts on their annual financial disclosure statements.

Whitehouse posted the Nov. 7 response he and Johnson received from the legal counsel of the court on Twitter on Saturday, after the New York Times story came out. The court’s response simply restated which ethics laws apply to the court and that court’s court’s code of conduct, which is non-binding and unenforced, exists.

“Tellingly, it notes the existence of the wall-decoration code, but is not responsive to my letter and shows no sign of inquiry or interest in what went on,” Whitehouse tweeted.

Progressive groups called for a Senate investigation into the Alito allegations following their disclosure on Saturday.

Since Democrats lost control of the House in the midterm elections, Johnson will lose the gavel of the House Judiciary Committee’s subcommittee overseeing the courts in January. But Democrats kept control of the Senate.

That means that Whitehouse can still compel testimony and hold hearings through the subcommittee he chairs on the Senate Judiciary Committee for at least the next two years.