Kennedy at the Supreme Court Ethics Hearing: 'They Will Pay the Price and Reap the Whirlwind' (May 2, 2023)

On May 2, 2023, the Senate Judiciary Committee held a hearing titled “Supreme Court Ethics Reform” [1]. It followed news reports about Justice Clarence Thomas’s relationship with a Republican donor, including luxury travel and a real estate purchase the donor paid for, and Chief Justice John Roberts had declined the committee chairman’s invitation to testify, sending instead a “Statement on Ethics Principles and Practices” signed by all nine justices [2][3]. The witnesses were former federal judge Jeremy Fogel, who leads the Berkeley Judicial Institute; former Attorney General Michael Mukasey; Kedric Payne of the Campaign Legal Center; Thomas Dupree Jr., a partner at the law firm Gibson, Dunn & Crutcher; and Amanda Frost, a law professor at the University of Virginia [1]. Sen. John Kennedy of Louisiana used his time to argue that the ethics push rested on an unstated accusation of bribery. This video shows the end of his questioning. All quotes below are from the official hearing record, Senate Hearing 118-35 [1].

Key Moments

”As big as Dallas”

Kennedy began with Payne. He read from the Campaign Legal Center’s website: “The current U.S. Supreme Court is a threat to our democracy.” Payne said the line referred to the court’s voting rights cases. Kennedy then read a post he said Payne had retweeted on November 21, 2022: “Some Justices are politicians in robes who thrive in a system where access and influence are for sale.” “Tell me which Justices are for sale?” Kennedy asked. “No, Senator, I do not believe that Justices are for sale,” Payne said. When Kennedy said Payne had also retweeted “John Roberts is a disgrace,” Payne replied: “No, Senator, I did not retweet that.” “Okay. Maybe Twitter got it wrong,” Kennedy said. “Someone got it wrong,” said Payne.

”Do you think the ACLU was trying to bribe Justice Sotomayor?”

Kennedy turned to Fogel and said that “on April 4th, 2019, the American Civil Liberties Union paid for Justice Sotomayor’s trip to San Juan, Puerto Rico.” Did the ACLU have cases before the court? “All the time,” Fogel said. “Do you think the ACLU was trying to bribe Justice Sotomayor?” “No, sir, I don’t.” “I don’t either,” Kennedy said. “But that’s the unstated premise of all this.” Fogel objected. “I think there are two things going on here today,” he said. “I think there is a political conflict, which is, as I said earlier, it’s very intense. It’s hyperpartisan. Both sides have things to say. And then, I think there’s an ethical issue.” When Kennedy replied that accusing people of bribery “kind of gets their attention,” Fogel said: “I’m not accusing anybody of being bribed. I’m not.” His concern, he said, was transparency: “it would be good for the Court to think about in terms of being more transparent."

"They will pay the price and reap the whirlwind”

Kennedy closed with the remark in this video: “Well, how are you going to do that in the context, though, of one of our Leaders—for whom I have great respect—going on the steps of the United States Supreme Court, telling two Justices if they vote in a way he doesn’t like, they will pay the price and reap the whirlwind.” He tied it back to Payne’s retweet: “He said they were bought like a sack of potatoes.” “Not true,” Payne said.

Kennedy’s Opening: “Fill Out a Hurt Feelings Report”

Earlier, as the top Republican on the Courts Subcommittee, Kennedy gave his side’s opening statement. “Americans may be poorer under the Biden administration, but they are not stupid. They know what’s going on here,” he began, before quoting Schumer’s 2020 warning to Justices Neil Gorsuch and Brett Kavanaugh. “Today’s hearing is just the next chapter in their Federal power grab, and they’ve invited cameras,” he said [1].

He tied that rhetoric to the threats that followed. “Incensed protesters took to the streets, not outside Congress, not outside the Court, but outside the homes—the homes of Justice Roberts, Justice Kavanaugh, Justice Thomas, and Justice Barrett,” Kennedy said. “A man with a gun, ammunition, knife, pepper spray, and zip ties went to a Justice’s home to assassinate him” [1].

He called the Democrats’ plan both unconstitutional and unnecessary. “The constitutional separation of powers means that no branch of the Federal Government can dictate how another should govern itself,” he said. “The attacks on conservative Justices are targeted. They’re exaggerated.” His advice to the other side: “fill out a hurt feelings report and move on for the sake of the Constitution” [1].

He also pointed to liberal justices who had corrected their own disclosures. “You know who else amended their disclosures because of inadvertent admissions? Justice Ruth Bader Ginsburg, Justice Stephen Breyer,” he said, adding that Justice Ketanji Brown Jackson “made multiple amendments 3 days—3 days after President Biden nominated her” [1].

Background: The Justices’ Statement

The statement Roberts sent in place of testimony described the rules the justices follow on travel, gifts and outside income [2]. It also said that “individual justices, rather than the court, decide recusal issues,” explaining that if the full court reviewed individual recusal decisions, “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.”

The Record: Schumer’s 2020 Remarks

The leader Kennedy meant was Senate Democratic leader Chuck Schumer. On March 4, 2020, at a rally outside the Supreme Court while the justices heard a Louisiana abortion case, Schumer said: “I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price” [4]. “You won’t know what hit you if you go forward with these awful decisions,” he added, Fox News reported. Chief Justice Roberts answered with a rare written statement: “Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All Members of the Court will continue to do their job, without fear or favor, from whatever quarter” [7]. The next day, Schumer said on the Senate floor: “I should not have used the words I used yesterday. They didn’t come out the way I intended to. But in no way was I making a threat. I’m from Brooklyn. We speak in strong language” [4].

What Happened Next

A bill: On July 20, 2023, the committee approved Democrats’ Supreme Court ethics bill on a party-line vote. The Associated Press noted it had little chance of passing, needing at least nine Republican votes in the Senate [5].
A code of conduct: On November 13, 2023, the Supreme Court issued its first formal code of conduct [6].