Ethics in the Supreme Court: Should We Be Worried?
Earlier this year investigative journalism revealed that Supreme Court Justice Clarence Thomas repeatedly failed to disclose the nature and parties involved with several of his personal financial activities. The revelations sparked renewed discussions about ethics and corruption in the Supreme Court, with some saying he broke the law while others were less certain. What did Justice Thomas actually do? What laws govern the Supreme Court, and did he break them? Are reforms needed to avert corruption in the court?
In April, ProPublica published an investigative report which revealed that Justice Thomas had taken multiple expensive vacations over twenty years funded by Harlan Crow, a billionaire megadonor to Republican political causes, and did not disclose that Crow had financed them. This included at least six trips to places including Indonesia and New York using Crow’s private plane, and regular stays at Crow’s private resort as well as the use of his super yacht.
But that was just the start. A further investigation from ProPublica found that Crow’s company had also purchased properties in the form of two vacant lots and a house from Thomas, transactions that he also failed to disclose. The publication also found that Crow had paid for the private school tuition of Thomas’s grandnephew, totaling around $100,000. And a subsequent investigation by the Washington Post found that Thomas had claimed income on numerous occasions—between $50,000 and $100,000—from a real estate business that didn’t actually exist anymore.
These reports raise concerns of transparency and influence at the nation’s highest judicial level. Crow has been involved in legal issues which have appeared before the Supreme Court, namely a copyright case worth $25 million for a company which he partially owned. He is also a significant donor to Republican groups like the Federalist Society and a Board member at the American Enterprise Institute and Hoover Institution. While Crow told journalists he had not talked about cases or tried to influence Thomas, there is no question he holds partisan positions and connections that could be relevant to specific issues in the Court.
What Are the Rules
There are rules and regulations in place which govern the behavior of public officials, including in the judiciary system, and this is where the arguments over the legality of Thomas’s actions take place. Title 28 of the US legal code requires that all federal judges—including Justices on the Supreme Court—must recuse themselves from cases in which their impartiality may reasonably be questioned. There is also a substantial code of conduct established by the Judicial Conference to govern the actions of United States judges, though the Congressional Research service has previously said the code doesn’t explicitly apply to Supreme Court Justices.
Specifically for these issues, the Ethics in Government Act requires federal judges to disclose the nature and magnitude of certain gifts and transactions. An update was made with the 1989 Ethics Reform Act which required all judges to report (annually) all gifts valued higher than $415, identify gift sources, and reject gifts from those with business before the Court. The rules were updated again and made more stringent this past March by including requirements to report free visits to commercial properties and private jet travel, but do not cover overnight stays at the homes of friends.
Thomas defended his actions by stating that he had been told by his fellow Justices that these kinds of expressions of “personal hospitality between close friends” were not required to be disclosed. He also stated that the exchanges did not require disclosure because Crow did not have any business in front of the Court.
But it was already established that Crow did in fact have connections to business which appeared before the Court. Furthermore, while gifts such as lodging or food which were received on a person’s property had previously been exempted from disclosure rules, transactions or gifts of transportation were not. At the time these gifts were given, however—before the updates to disclosure rules—the need to report these “personal hospitality” gifts was considered ambiguous. Even then, though, the law requires that federal judges disclose details of real estate sales worth more than $1000, which Thomas did not do. Whether he will face any consequence for that violation is unclear—but unlikely.
In practice, the rules that govern the judiciary have applied rather differently to Supreme Court justices. The Court itself has pushed back before against suggestions of ethical reforms and oversight—Chief Justice John Roberts argued in 2011 that oversight attempts by Congress may be unconstitutional, since Congress is empowered to create lower-level courts but the Supreme Court was created directly by the Constitution. He also asserted that the justices consult the code of conduct for US judges mentioned above when they consider their own ethical obligations. In the wake of these recent revelations about Justice Thomas, all nine justices signed a statement in defense of their behavior—a statement that seemed to spend more time in discussion of broader ethical ideas like paid teaching opportunities than the specific issue at hand, but which said they followed the applicable requirements and limitations on gifts and financial disclosures that govern lower federal judges.
The reality is that from a practical aspect, holding justices to account is not a simple process. Title 28 is not only vaguely worded, but also does not have any clearly defined or precedented mechanisms for its enforcement. Chief Justice Roberts also pointed out that a lower judge’s refusal to recuse themselves is reviewable by an appeals court, and further up the chain—but there is no court higher than the Supreme Court, which leaves uncertainty over who would review a justice’s refusal to recuse themselves.
When it comes to disciplining ethics issues in the Court, the only real existing method is impeachment, which requires a majority of the House of Representatives and two-thirds of the Senate to vote in favor—a highly unlikely scenario in current hyper-partisan politics. The federal financial disclosure regulations also allow for the Attorney General to decide to impose a fine of $50,000 for each disclosure violation. Neither of these has ever happened, however, leaving no precedent to encourage action now. As things stand, there is no official process in place to have justices comply with ethics rules, nor is there even agreement on which rules the justices are required to follow.
What Could Change
It’s important to note that Justice Thomas is not the only person on the Supreme Court with a questionable ethics record. Justice Neil Gorsuch owned a property which was purchased nine days after his confirmation to the bench, by the chief executive of a law firm which regularly works on cases before the Court. Justice Samuel Alito was also found to have taken a vacation with a noted Republican donor. And Justice Sonya Sotomayor and her staff were found to have used college visits to push the sale of her book to colleges and libraries.
These repeated ethical issues, along with the idea that such a powerful institution could be so unaccountable, have led many to call and push for reforms in how the Court operates. Outside organizations have called for the Court to adopt its own code of conduct, including the American Bar Association which helped design the code that governs lower federal judges. Members of Congress have also proposed legislative changes: the Supreme Court Ethics, Recusal, and Transparency Act would mandate the Court establish a code of ethics and more stringent regulations for disclosures and conflicts of interest, and the Supreme Court Ethics Act would also create an ethics lawyer empowered to investigate violations. The Supreme Court is one of the most powerful institutions in American society—it may not be unreasonable to expect it would abide by at least comparable ethics rules to the other two branches of government.
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