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Leonard Leo has a message for Democrats seeking to exercise oversight of the Supreme Court: pound dirt. In a defiant letter Tuesday to Senate Judiciary Committee Chair Dick Durbin and Senator Sheldon Whitehouse, an attorney for the conservative legal activist rejected the panel’s request for information about his gifts to Supreme Court justices, claiming that their investigation is “politically charged,” violates Leo’s rights, and “lacks a valid legislative purpose.”
“We believe that your inquiry exceeds the limits placed by the Constitution on the Committee’s investigative authority,” Leo attorney David B. Rivkin wrote to the senators, who had demanded information from the co-chair of the Federalist Society board after ProPublica reported on a 2008 fishing trip he arranged for conservative justice Samuel Alito. “It seems clear that this targeted inquiry,” Rivkin continued, “is motivated primarily, if not entirely, by a dislike for Mr. Leo’s expressive activities.”
Durbin and Whitehouse, two leading voices demanding Supreme Court reform, initially requested information from Leo earlier this month about his gifts to Supreme Court justices. Their request came as they considered legislation to “strengthen the ethical rules and standards that apply to the Justices of the Supreme Court”—a reference to Whitehouse’s Supreme Court Ethics, Recusal, and Transparency Act, which the Judiciary Committee took up last week. But Rivkin, writing on Leo’s behalf, claimed that “any attempt by Congress to enact ethics standards for the Supreme Court would falter on constitutional objections,” and the committee therefore had no legislative reason to investigate Leo.
“Congress cannot conduct an investigation in connection with legislation that it cannot constitutionally enact,” Rivkin wrote.
That argument—that basically any check on the Supreme Court’s power is unconstitutional—echoes one put forth by Chief Justice John Roberts, when he rebuffed Durbin’s invitation to testify before the Judiciary Committee this past spring on the basis that such an appearance could raise “separation of powers concerns” and violate “judicial independence.”
But of course, concerns around the court’s “independence” are at the very heart of Durbin’s investigation and Whitehouse’s legislation: Revelations about undisclosed gifts, trips, and transactions between justices and the wealthy and well-connected have raised serious concerns about the integrity of the court, and have helped tank public confidence in the institution. Those transgressions include, but are not exclusive to, the lucrative friendship between Clarence Thomas and Harlan Crow; and the luxury fishing trip Alito took with Paul Singer, a conservative billionaire whose hedge fund later had cases before the Supreme Court. That 2008 trip—which Alito did not report on his annual disclosure forms—was reportedly organized by Leo, who also has deep ties to Thomas and his wife, Ginni, a conservative activist.
Leo’s lawyer argued Tuesday that Democrats were playing politics in focusing on the scandals involving conservative justices, while ignoring instances of possible impropriety by liberal justices, including the late Ruth Bader Ginsburg. “The Committee has focused its inquiries on individuals who have Relationships with Justices appointed by Republican Presidents,” Rivkin wrote. “Reported instances of Democrat-appointed Justices accepting personal hospitality or other items of value from private individuals have been ignored.”
But, as Durbin has pointed out, he began his push for a Supreme Court code of ethics more than ten years ago, when Barack Obama was in office. “I wasn’t motivated by any decision by this court—they weren’t even in existence,” Durbin told me in May. “We’re certainly not zeroing in and saying, If you fix the Thomas problem, the Court’s in good shape,” he continued. “We think all the justices should be held to the same standard, at least of the other courts in the United States.”
That doesn’t seem like it should be controversial. But Republicans, including those who have previously suggested a need for greater transparency, have resisted the push for accountability—as has the court itself, despite its professed heartburn over its legitimacy crisis. The message instead—from Roberts, his colleagues and the billionaires in their orbit to the GOP—has been that there’s nothing to see here. Just trust us, they seem to be saying to the public—even as they give them every reason not to.
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