Harlan Crow Sets Stage for a Constitutional Contest Over Senate’s Powers To Impose Ethics Code on Supreme Court

A major constitutional showdown over separated powers is in the works.

AP/J. Scott Applewhite, file
Justice Clarence Thomas in 2018. AP/J. Scott Applewhite, file

Billionaire Harlan Crow’s letter to the Senate Judiciary Committee defending his relationship with Justice Clarence Thomas reaches beyond a personal defense, setting the stage for a major constitutional battle on the Framers’ conception of separated powers and whether Congress can impose an ethics code on the high court.

The missive, on the letterhead of the Gibson Dunne law firm and signed by an attorney, Michael Bopp, is marked “Confidential.” It’s addressed to the committee’s chairman, Senator Durbin. It follows a tumult over the justice’s relationship to the real estate mogul ignited by a series of dispatches alleging that Mr. Crow lavished luxury travel and vacations, among other perks, on the jurist. 

That precipitated a renewed effort by Senator Durbin and Democratic lawmakers, as well as outside groups, to push for a code of ethics at the court. All federal judges who sit on lower courts, but not those on the high court, are bound by the Code of Conduct for United States Judges. The justices can consult those regulations, but are not obligated to them. 

Senator Durbin “invited” the chief justice of the United States to attend a committee hearing on the ethics question. Justice Roberts declined, citing “separation of powers concerns” and the need to preserve “judicial independence.” The entire court also signed on to a statement asserting that judges “at all levels face increased threats to personal safety.”  

The letter denies that the committee “has the authority to investigate Mr. Crow’s personal friendship with Justice Clarence Thomas,” because it “has not identified a valid legislative purpose for its investigation and is not authorized to conduct an ethics investigation of a Supreme Court Justice.” 

Mr. Crow argues that such an investigation “would exceed Congress’s Article I authority and violate basic separation of powers principles,” as none of its “enumerated powers includes the authority to regulate the internal affairs and operations of the Supreme Court, a coequal branch of government.”

Mr. Crow stresses that the high court is a creature of the Constitution, not of Congress. He allows that the national parchment ​​”confers only a few, circumscribed powers that Congress may exercise with respect to how the Supreme Court functions,” among them setting jurisdiction and impeachment. An ethics code, he argues, would be beyond the solons’ mandate. 

 It’s doubtful that the Democrats could get an impeachment bill out of the House, in which they are in the minority. It’s also unlikely that they could win an impeachment trial in the Senate, in that their majority there is nowhere near the two-thirds required for the Senate to do so. 

What of the argument that the “Necessary and Proper Clause” empowers Congress to legislate in support of its enumerated powers? Mr. Crow argues that “there is no enumerated power that endows Congress with the authority to regulate the Supreme Court’s internal affairs, and the Supreme Court does not exist by virtue of any congressional enactment.”

Turning to the efforts of Senators Durbin and Whitehouse, among others, to impose a code of ethics to bind the justices, Mr. Crow explains that establishing rules of judicial ethics” is within the “inherent powers of internal court governance.” Outsourcing that to Capitol Hill would “risk inserting political influences into the Court’s affairs and interfere with the Court’s decisional independence.” 

Zooming in to offer a spirited defense of his friend, Mr. Crow avers that Mr. Durbin is aiming to “target and intimidate Justice Thomas and unearth what the Committee apparently believes will be embarrassing details of the Justice’s personal life.” He cites the high court for the dictum that there is “no congressional power to expose for the sake of exposure.” 

Mr. Durbin, begging to differ, argues that “Harlan Crow believes the secrecy of his lavish gifts to Justice Thomas is more important than the reputation of the highest court of law in this land. He is wrong,” He promised to work to “craft and advance the targeted ethics legislation needed to help restore trust in the Supreme Court.”

The New York Sun

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