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Chief Justice Roberts declines to testify at Senate's Supreme Court ethics hearing

The invitation from Judiciary Committee Chairman Dick Durbin was extended after Justice Clarence Thomas came under scrutiny for accepting undisclosed gifts.

Chief Justice John Roberts on Tuesday declined an invitation from a high-ranking Democratic senator to testify at a congressional hearing on ethics rules for members of the Supreme Court.

In a letter to Senate Judiciary Committee Chairman Dick Durbin, D-Ill., Roberts suggested that his participation could pose a threat to judicial independence.

“Testimony before the Senate Judiciary Committee by the Chief Justice of the United States is exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence,” Roberts wrote.

Roberts included in his letter a statement of ethics principles and practices “to which all of the current Members of the Supreme Court subscribe.”

Supreme Court Chief Justice John Roberts attends President Joe Biden's State of the Union address at the U.S. Capitol on Feb. 7, 2023.
Supreme Court Chief Justice John Roberts attends President Joe Biden's State of the Union address at the U.S. Capitol on Feb. 7, 2023.Tom Williams / CQ-Roll Call, Inc via Getty Images file

Durbin had requested Roberts’ participation, or the participation of a justice of his choosing, at a public hearing “regarding the ethical rules that govern the Justices of the Supreme Court and potential reforms to those rules” scheduled for May 2.

In his invitation, Durbin cited “ample precedent” for sitting justices’ testimony, citing testimony in October 2011 from Justices Stephen Breyer and Antonin Scalia, which he said included “robust exchanges about the Court’s approach to ethics matters.”

A ProPublica report this month described how GOP megadonor and billionaire Harlan Crow provided trips and gifts to Justice Clarence Thomas that Thomas did not disclose.

After Roberts declined to testify, Durbin referred to Thomas while saying lawmakers should set "an enforceable code of ethics" for the Supreme Court.

“I am surprised that the Chief Justice’s recounting of existing legal standards of ethics suggests current law is adequate and ignores the obvious. The actions of one Justice, including trips on yachts and private jets, were not reported to the public. That same Justice failed to disclose the sale of properties he partly owned to a party with interests before the Supreme Court," Durbin said.

“It is time for Congress to accept its responsibility to establish an enforceable code of ethics for the Supreme Court, the only agency of our government without it,” he added.

In addition to seeking his testimony, Democrats on the Judiciary Committee have called on Roberts to investigate Thomas' undisclosed gifts.

Thomas referred to Crow and his wife, Kathy, as “dearest friends” in a statement this month and said that early in his Supreme Court tenure he had been advised that “personal hospitality from close personal friends, who did not have business before the Court, was not reportable.”

“I have endeavored to follow that counsel throughout my tenure, and have always sought to comply with the disclosure guidelines,” Thomas said in the statement.

On Monday, Senate Finance Committee Chairman Ron Wyden, D-Ore., launched a separate inquiry by asking Crow to provide a complete account of any trips, gifts and payments he has made to Thomas over the years.

Allegations against Thomas were referred last week to the Judicial Conference of the United States, a committee that reviews financial disclosures, in response to concerns raised by Sen. Sheldon Whitehouse, D-R.I., and Rep. Hank Johnson, D-Ga.