WASHINGTON – U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, and U.S. Senator Sheldon Whitehouse (D-RI), Chair of the Senate Judiciary Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights, sent a letter to the Supreme Court Historical Society requesting information regarding the ways in which the Society provides access between Supreme Court Justices and its donors. 

As part of and in addition to its educational mission, the Society organizes dinners and events that provide access to the Justices.  Notably, not all of these events are open to the general public, allowing special access to donors.  According to reporting by the New York Times, since 2003, the Society has raised more than $6.4 million—or 60 percent of its donations—from corporations, special interest groups, or lawyers and firms that argued cases before the Court.  Of that percentage, at least $4.7 million came from individuals or entities during a year in which they had an interest in a matter pending before the Courts of Appeals or the Court itself. 

“Regardless of the intentions behind this access, the ability of those with interests before the Court to obtain special access to the Justices—that is not available to all Americans—at minimum creates an appearance of undue influence that undermines the public’s trust in the Court’s impartiality,” the Senators wrote.  “These revelations come at a time when public confidence in the Court is already at an all-time low, with only 37 percent of Americans reporting confidence in the Court.”

The Senators’ letter continues, “Maintaining faith in the impartiality of the federal judiciary is a necessary prerequisite for preserving the rule of law.  In the absence of action by the Supreme Court to address shortcomings in its ethical standards and practices, Congress must act to restore faith in the Court by passing legislation that addresses those shortcomings.  The Senate Judiciary Committee has jurisdiction over such legislation and is considering legislation strengthening the ethical rules and standards that apply to Justices of the Supreme Court.  The information requested by this letter will help clarify the full scope of ethical concerns that the legislation must address.” 

The Senators’ letter requests information no later than July 25, 2023. 

On Monday, Durbin and Whitehouse announced that the Senate Judiciary Committee will mark up and vote on Whitehouse’s Supreme Court Ethics, Recusal, and Transparency (SCERT) Act on Thursday, July 20.  The bill would require Supreme Court Justices to adopt a code of conduct, create a mechanism to investigate alleged violations of the code of conduct and other laws, improve disclosure and transparency when a Justice has a connection to a party or amicus before the Court, and require Justices to explain their recusal decisions to the public.

Durbin and Whitehouse have been calling on the Supreme Court to adopt an enforceable code of conduct for more than a decade.  They first sent a letter to the Chief Justice on this issue 11 years ago.

Full text of the letter to the Society is available here and below:  

July 11, 2023

Dear Ms. Varner:

According to recent investigative reporting, individuals who may have had business interests or other interests before the Supreme Court have been able to gain personal and private access to Justices during occasions where Justices have accepted gifts of lodging and travel.^[1] Moreover, these are not the only methods those with business before Court have used to gain personal and private access to Justices. Last year, the New York Times reported about access that donors to the Supreme Court Historical Society (“Society”) have to Justices.^[2] We therefore write to request information regarding the ways in which the Society provides such access to its donors.

As part of and in addition to its educational mission, the Society organizes dinners and events that provide access to the Justices. Notably, not all of these events are open to the general public, allowing special access to donors. According to the Times, since 2003, the Society has raised more than $6.4 million—or 60 percent of its donations—from corporations, special interest groups, or lawyers and firms that argued cases before the Court.^[3] Of that percentage, at least $4.7 million came from individuals or entities during a year in which they had an interest in a matter pending before the Courts of Appeals or the Court itself.^[4] The Society has reportedly made clear that soliciting donations from those with interests before the Court was an intrinsic part of the Society’s fundraising model. David T. Pride, the Society’s Executive Director from 1979 through 2021, told the Times that the Society “was pretty unabashed about it,” and he justified this approach by remarking, “[w]ho wouldn’t expect that to be our constituency?”^[5]

Regardless of the intentions behind this access, the ability of those with interests before the Court to obtain special access to the Justices—that is not available to all Americans—at minimum creates an appearance of undue influence that undermines the public’s trust in the Court’s impartiality. These revelations come at a time when public confidence in the Court is already at an all-time low, with only 37 percent of Americans reporting confidence in the Court.^[6] Additionally, 72 percent of Americans support requiring Justices to disclose gifts and 69 percent are in favor of the Supreme Court adopting a code of conduct, suggesting that these steps could help restore confidence in the Court.^[7]

Maintaining faith in the impartiality of the federal judiciary is a necessary prerequisite for preserving the rule of law. In the absence of action by the Supreme Court to address shortcomings in its ethical standards and practices, Congress must act to restore faith in the Court by passing legislation that addresses those shortcomings. The Senate Judiciary Committee has jurisdiction over such legislation and is considering legislation strengthening the ethical rules and standards that apply to Justices of the Supreme Court. The information requested by this letter will help clarify the full scope of ethical concerns that the legislation must address. For these reasons, please provide the following information as soon as possible, but no later than July 25, 2023: 

1.      Please identify the full name of each current and former Officer to the Society and their years of service. 

2.      Please identify the full name of each current and former Trustee to the Society and their years of service.

3.      Please identify the full name of everyone who has ever received lifetime membership in the Society and the year they became lifetime members. 

4.      Please identify all Society events that a Supreme Court Justice attended in person, including the date and the Justice(s) present, from January 1, 2003 to present. 

5.      For all events responsive to Question 4, please describe the nature of the event and indicate whether the event was open to the general public.

6.      For all events responsive to Question 5 that were not open to the general public, please indicate whether attendance was restricted those who donated above a certain amount and what the donation amount was, and please identify the full name of each attendee. For attendees who were under the age of 18 at the time of the event, their names may be redacted.

Thank you for your attention to this important matter. We look forward to your prompt reply.

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