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Thursday, June 08, 2023

Harlan Crow and Clarence Thomas May Compel SCOTUS to Accept Federal Ethics Legislation

My new essay at The Hill explains how Harlan Crow’s latest move – declining a production request from the Senate Judiciary Committee – may end up forcing the Supreme Court justices to finally admit that they are governed by federal ethics legislation. In brief, Crow’s attorney claims that Congress has no constitutional authority to legislate ethics requirements for SCOTUS, an issue that the Supreme Court has dodged for over thirty years. If Crow makes the same claim in litigation, the courts will have no choice but to make a definitive ruling.

Here is the gist:

Harlan Crow’s Senate Rejection Could Force the Supreme Court to Address Ethics

If Crow attempts to quash an eventual subpoena, raising the claims he asserted in his letter to the Judiciary Committee, the courts will have no choice but to adjudicate the Senate’s authority to legislate regarding the Supreme Court’s “ethics rules and standards.” Barring capitulation by Crow, such a case could ultimately reach the Supreme Court, presenting the justices with the exquisite predicament of having to rule definitively on their own acceptance of federal ethics legislation. 

Finally called upon, as Roberts put it, to address “whether Congress may impose [ethics] requirements on the Supreme Court,” the justices would have two choices. They could enforce the subpoena, requiring Crow to produce his documents, while implicitly recognizing the validity of “legislation strengthening the ethical rules and standards that apply to the Justices of the Supreme Court.” 

Or they could accept Crow’s argument that Congress lacks “the constitutional power to impose ethics rules and standards on the Supreme Court,” quashing the subpoena and diminishing their own waning legitimacy right along with it.

You can read the entire essay at The Hill.

Posted by Steve Lubet on June 8, 2023 at 09:35 AM | Permalink


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