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Chief Justice Roberts declines Senate invite to testify on Supreme Court ethics

AILSA CHANG, HOST:

Supreme Court Chief Justice John Roberts has declined an invitation to testify before the Senate Judiciary Committee. Senator Dick Durbin, the chair of the committee, had planned to hold a hearing on May 2 to examine what he called, quote, "commonsense proposals to hold Supreme Court justices to the same ethical standards as the rest of the federal judiciary." The hearings follow a series of news reports that raised questions about Justice Clarence Thomas and his business dealings.

Joining us now to explain all of this is NPR legal affairs correspondent Nina Totenberg. Hey, Nina.

NINA TOTENBERG, BYLINE: Hi there, Ailsa.

CHANG: So I understand that Roberts sent Durbin a letter tonight. What exactly did this letter say?

TOTENBERG: He noted that only two previous chief justices have testified before Congress. And in each case, Roberts said, the testimony concerned what he called mundane matters. Now, accompanying the letter was a 2 1/2-page statement of ethics, principles and practices, which Roberts said all of the current justices, quote, "today reaffirm and restate." The document reiterates that justices seek to abide by the code of conduct followed by the lower courts. That said, it makes a variety of exceptions to transparency rules in the name of security and for other reasons. And under these rules, the justices are supposed to disclose outside income, outside employment, any gifts that they get, etc., etc. And Roberts noted that the judicial conference has just this year tightened some of the disclosure requirements - for instance, requiring disclosure of free airplane trips and other gifts from friends that, in the past, have been exempted.

CHANG: Well, with respect to those disclosure requirements, I mean, Durbin's whole planned hearing comes after news reports that raise questions about Justice Thomas' relationship with a particular Republican donor. These questions include luxury travel and a real estate purchase paid for by that donor. There was also a Politico story today about a real estate transaction in which Justice Neil Gorsuch was part owner of a property sold to a leading Supreme Court lawyer - a lawyer who has had many cases before the court. Has the Supreme Court said anything about any of this?

TOTENBERG: Basically, no. And I should note that the ethics statement signed by all the justices also says that, quote, "individual justices, rather than the court, decide recusal issues." Translation - there is still no group enforcement mechanism. As the ethics statement puts it, quote, "if the full court or any subset of the court were to review the recusal decisions of individual justices, it would create an undesirable situation in which the court could affect the outcome of a case by selecting who, among its members, may participate."

Finally, I should say that the ethics statement makes quite a point of security, noting that justices are facing increasing threats, and that matters maybe such as travel accommodations and disclosure may sometimes have to take a back seat to security.

CHANG: So has Senator Durbin responded to Roberts' letter yet?

TOTENBERG: Yes, he has. Durbin said, make no mistake - Supreme Court ethics reform must happen, whether the court participates in the process or not.

CHANG: That is NPR legal affairs correspondent Nina Totenberg. Thank you, Nina.

TOTENBERG: Thank you, Ailsa. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.