The Volokh Conspiracy

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Senator Durbin Invites CJ Roberts "Or Another Justice Whom [He] Designate[s]" To Testify Before Senate Judiciary Committee

Send Justice Breyer!


In recent days, there has been some talk about whether the Senate Judiciary Committee would invite Justice Thomas to testify, or potentially issue a subpoena. I spoke to Roll Call about the issue. To my knowledge, Congress has only issued a subpoena to a Justice once: the House Un-American Activities subpoenaed Justice Cark, who had previously served as AG. Clark refused to honor the subpoena, and Congress did not hold him in contempt.

Senator Durbin, the Chair of the Senate Judiciary Committee, did not follow that path. Instead he sent a letter to Chief Justice Roberts. It begins:

I invite you, or another Justice whom you designate, to appear before the Senate Judiciary Committee on May 2, 2023, at 10:00 a.m. . . .  to testify at a public hearing regarding the ethical rules that govern the Justices of the Supreme Court and potential reforms to those rules."

I'm sure the Chief Justice wants to appear before the Senate as much as he enjoys reading my blog posts. But there is an easy work around: appoint Justice Breyer as a designate. He looooves the Senate. He loves talking about ethics. And he could address these issues from the removed vantage point of a senior associate justice, who no longer decides cases.