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Draft opinion to overturn Roe becomes focus of Senate hearing on ethics reform

Just hours after the country learned from a leaked draft opinion that the justices have privately voted to overturn Roe v. Wade, a Senate Judiciary Committee panel met on Tuesday to discuss ethics reform of the high court. “Today’s a hell of a day to be considering ethics questions around the Supreme Court,” Sen. Sheldon Whitehouse, D-R.I. and the chair of the subcommittee on courts, said. This was the second congressional hearing on Supreme Court ethics reform in under a week.

Tuesday’s hearing was set to focus on proposals to update the law regarding the recusal of justices, add protections against anonymous financial influence through amicus briefs, and create a binding code of conduct for the court. Senators heard from five witnesses on recusal practices, the ethics requirements of other branches of the government, and the impact of increased transparency on public trust in the court. But the leaked document became the primary topic of discussion.

While nearly every person who spoke expressed disappointment in the leak, Republican senators focused their ire on the source. Sen. John Kennedy, R-La., said the person responsible should face severe penalties, including possible criminal charges. “Now we’re about to find out what our Department of Justice is made of,” he said. Whitehouse responded, “I guess we’ll begin by trying to identify what law that person might have violated.”

Draft Supreme Court opinions are not classified, and disclosing them is not a crime in and of itself, but legal experts say the leak could still trigger criminal liability if the leaker broke other laws in connection with the leak (such as hacking a computer). Chief Justice John Roberts has directed the court’s marshal, Gail Curley, to investigate the leak.   

Ultimately, Democrats used the draft opinion to underscore their main point: The nine justices wield great power to change the rights of Americans yet are the only members of the federal judiciary without a check on their recusal decisions or a binding code of ethics. Sen. Mazie Hirono, D-Hawaii, said, “[The leak] is being characterized as a stunning thing which is happening. I think we should be so much more stunned that the radical right-wing justices on the Supreme Court are prepared to eliminate a constitutional right that the women in this country have relied on for almost 50 years. That is a stunning thing.”

Recommended Citation: Ellena Erskine, Draft opinion to overturn Roe becomes focus of Senate hearing on ethics reform, SCOTUSblog (May. 3, 2022, 7:01 PM),