Revelations about Justice Clarence Thomas’s failure to disclose largess from a Republican donor have highlighted a dilemma.
The drumbeat of revelations that Justice Clarence Thomas did not disclose lavish gifts and significant financial arrangements with a billionaire Republican donor has put a spotlight on the fact that the Supreme Court has the weakest ethics rules in the federal government.
But it is far less clear that anything can be done about it.
Justice Thomas’s behavior has underscored that financial disclosure rules for justices are porous and that the court has no binding code of ethical conduct like the one that governs lower-court judges. The court has shown no interest in adopting one, and proposals in Congress to force one upon it face steep political and constitutional hurdles.
As a result, even as Supreme Court ethics have become a matter of public policy concern to a degree not seen since 1969 — when Justice Abe Fortas resigned in a scandal over taking outside income from a friend and a Wall Street financier — Washington finds itself grappling with growing questions about the court’s accountability and all but paralyzed over how to proceed.
“It’s a mess,” said Stephen Gillers, a legal ethics professor at New York University. “It’s like a maze you have to get out of, but each time you make a turn, you come up against a wall and you have to double back and see if you can find another route out.”
Congress established federal district courts and appeals courts, and in 1922, it directed the creation of the Judicial Conference, mostly composed of lower-court judges, to manage them. And in 1978, Congress enacted a statute requiring financial disclosures, based on which the Judicial Conference has written detailed regulations.
But while the justices said in a statement to the Senate Judiciary Committee last month that they view those rules and guidelines as important and insisted that they voluntarily follow their substance, the justices have not accepted them as constitutionally binding. Their statement noted the Judicial Conference does not supervise them.
Moreover, both the judicial conference rules and the 1978 statute they are based on have ambiguities. Even after a recent clarification that travel on private jets and to upscale resorts provided by friends must be disclosed, that rule does not apply to stays at luxurious private properties. And there is no maximum value on how much “personal hospitality” a wealthy benefactor can lavish upon a justice or judge.
Congress has also enacted a statute requiring justices to recuse themselves “in any proceeding in which his impartiality might reasonably be questioned.” But its standards are vague, and the court allows each justice to decide whether to recuse from a particular case and without any public explanation.
In their recent statement, the justices defended that system, arguing they have a “duty to sit that precludes withdrawal from a case as a matter of convenience or simply to avoid controversy” since — unlike lower-court judges — there is no one to replace them.
Some Democrats have called for Justice Clarence Thomas to resign after revelations that a Republican donor had given him lavish gifts.Credit…Alex Wong/Getty Images
Chief Justice John G. Roberts Jr. appended that statement to a letter declining to appear before the committee this week to discuss potential Supreme Court ethics reforms. When that hearing proceeded with other witnesses, its tenor made clear that there is scant prospect of significant bipartisan agreement on any legislation.
Instead, from start to finish, Republican senators defended Justice Thomas’s conduct and denounced a series of reports in ProPublica that have brought to light his failure to disclose myriad types of largess and financial dealings from the Republican donor, Harlan Crow.
Among the disclosures Justice Thomas omitted: gifts of luxury travel, the sale of the home of the justice’s mother to Mr. Crow, and the donor’s paying of two years of private-school tuition for Justice Thomas’s great-nephew, over whom the justice had legal custody and was raising as a son.
In deflecting criticism of Justice Thomas, the G.O.P. lawmakers cited travel provided to Democrat-appointed justices by universities, glossing over the fact that they disclosed the trips.
At its core, though, Republicans’ rejection of any tightening of ethics rules boiled down to casting such proposals as an attempt by liberals to delegitimize the court simply because they do not like the rulings by its supermajority of Republican-appointed justices.
“This is not about trying to upgrade the ability of the court to be more transparent,” said Senator Lindsey Graham of South Carolina, the top Republican on the Judiciary Committee. “It’s about an effort to destroy the legitimacy of this conservative court.”
The partisan polarization on display at the hearing underscored that the main theoretical check against extreme misbehavior by a Supreme Court justice — impeachment by the House and removal by a vote of two-thirds of the Senate — is effectively politically impossible, especially if it could potentially alter the court’s ideological composition.
Part of the dilemma lies in the structure of American government, which bestows Supreme Court justices with a unique position. They wield the power to interpret laws passed by Congress as not covering a particular action or as unconstitutional. They also have life tenure, and their decisions are not subject to any higher review.
This structure is meant to protect the justices’ independence to best interpret the law by shielding their judgments from outside political pressures. But it has the consequence of also making it hard to impose real rules on how justices conduct themselves outside their work.
For one, proposals by lawmakers to require the Supreme Court to draft its own ethics code, or to directly impose one on the justices, raise the question of whether Congress has the constitutional power to do so. Even if that were surmounted, it is not obvious how such rules would be enforced.
At the Judiciary Committee hearing on the topic this week, there was broad agreement that the cleanest solution would be for the court itself to voluntarily adopt stronger ethics rules.
Kedric Payne, the vice president and general counsel of the Campaign Legal Center, testified that the court needed to create an internal office of staff ethics experts to provide guidance and investigate allegations of potential violations by the justices. He said they could do so immediately and it was unclear to him why they had not already.
Some legal experts stressed in testimony to Congress that an enforcement mechanism for a Supreme Court ethics code would be both crucial and difficult to implement.Credit…Sarah Silbiger for The New York Times
“The only way that any current ethics rules or future ethics rules will work is if there’s a way to enforce these rules and a way for the Supreme Court justices to understand how they apply,” he said. “So, therefore you need an internal body that can provide the ethics expert advice and also gather facts in the circumstances where there are potential violations that need to be resolved.”
But enforcement is the rub. A recurring theme in the hearing and the broader discussion of potential change was the lack of an obvious remedy if a justice flouted a rule or contended that it was inapplicable to something he or she wanted to do.
“What is the enforcement mechanism?” Thomas Dupree, a partner at Gibson, Dunn and Crutcher, asked at the hearing. Raising a constitutional impossibility for rhetorical effect, he added: “Is there going to be some superior tribunal to the Supreme Court that is going to disqualify the justices?”
For the same reason, it is far from clear that Chief Justice Roberts could unilaterally impose an ethics code on the rest of the court, even if he were more inclined to do so than he appears to be. If another justice chose to ignore any edict, the chief justice would have no obvious way to enforce it.
The proposals that have been floated carry drawbacks. One is to have the rest of the court sit in judgment of a ninth who is accused of some transgressions, but the justices are likely to reject such a role for collegiality reasons given the guarantee of lifetime tenure and the size of the court. Another is to have a panel of appeals court judges pass judgment on a justice, but that raises structural problems since they are subordinate judges.
Indeed, it is hard to envision any binding way to enforce a code of ethics on the Supreme Court. But Mr. Gillers said there would still be value in the court adopting one, predicting that justices would be inclined to comply with a standard they took an oath to obey as a matter of honor and to avoid criticism.
“If the court voluntarily adopted an ethics code, academics, the media and court watchers could call out transgressions or failures to recuse,” he said. “The very act of acknowledging ‘I am bound by this’ would give the public confidence that they will behave honorably, because violation carries a badge of shame.”