Supreme Ethics: A Code of Ethics for the Supreme Court?

By Anil Madan

A recent report by ProPublica broke the story that for two decades, Justice Clarence Thomas of the Supreme Court of the United States (SCOTUS) has accepted lavish gifts from Harlan Crow, a billionaire Republican donor. Thomas goes on cruises in far-flung locales on Crow’s yacht, flies on Crow’s private jet and keeps company with Crow’s friends and associates at Crow’s private resort. Justice Thomas has failed to disclose most of these indulgences, gifts if you will. Such disclosure is required.

Justice Thomas has accepted tens of thousands of dollars’ worth of gifts since joining the high court. Pic – The Atlanta Journal

Indeed, Justice Thomas has accepted tens of thousands of dollars’ worth of gifts since joining the high court, including $1,200 worth of tires, valuable historical items such as a Bible owned by the 19th century author and abolitionist leader Frederick Douglass, a bust of President Lincoln, and a $5,000 personal check to help pay a relative’s education expenses.

A federal law, known as the Ethics in Government Act of 1989, prohibits all federal employees, including the justices, from accepting anything of value from a person with official business before them. Under rules adopted by the Judicial Conference to implement the law, judges are allowed to accept gifts of unlimited value from people without official business before the court.

In what is clearly an attempt to find a loophole for not reporting these gifts, Thomas said he was advised he didn’t have to disclose private jet flights and luxury vacations paid for by billionaire Harlan Crow because, although a close friend, Crow “did not have business before the court.” Thomas did not disclose who gave him the advice and his statement that Crow did not have business before the Supreme Court is untrue.

Bloomberg reports that in 2005, the court declined to hear an appeal from an architecture firm that wanted more than $25 million from Trammell Crow Residential Co for allegedly misusing copyrighted building designs. The court’s order does not state that Thomas recused himself. On its face, Thomas’s actions appear to violate the federal law.

Justice Neal Gorsuch’s property purchased by law firm head: Justice Neal Gorsuch had listed for sale a 40-acre property he co-owned in Colorado for nearly two years before the chief executive of Greenberg Traurig, a large US law firm agreed to acquire it nine days after Gorsuch’s appointment to the Supreme Court was confirmed by the Senate. The sale closed a month later for $1.825 million. Although Gorsuch included his share of the proceeds on his disclosure form, he did not disclose the identity of the purchaser. The box for that information was left blank. The law firm has had multiple cases before the Supreme Court. Of 12 cases in which Gorsuch participated, he sided with the law firm’s position 8 times and against the firm 4 times.

Chief Justice Roberts’ wife earned “commissions”: Chief Justice Roberts’ wife Jane Roberts earned $10 million over an 8-year stretch as a recruiter placing lawyers with firms. The law firms had business before the Supreme Court. In an alleged whistleblower complaint, a former colleague of Jane Roberts alleged that she earned “commissions” because of her husband’s position and that the Chief Justice had improperly reported his wife’s earnings as “income” rather than “commissions” from law firms. The earnings were paid by Jane Roberts’ employer, not directly by the law firms. The whistleblower’s charges were dismissed by an arbitrator as being meritless.

Code of conduct for Justices

The Supreme Court has no formal code of ethics applicable to its Justices. However, that is not to say there are no standards of conduct for the Justices. In 1922, Congress created the Judicial Conference of the United States to manage the lower federal courts. The Judicial Conference, which binds lower courts, does not supervise the Supreme Court. Nevertheless in 1991, Members of the Court voluntarily adopted a resolution to follow the substance of the Judicial Conference Regulations. These requirements include filing disclosure forms. Note that the Ethics in Government Act of 1989 has a prohibition on Justices accepting gifts—anything of value—from persons having business before the Supreme Court.

The revelations of the gifts accepted by Thomas, and Gorsuch’s nondisclosure of the identity of the buyer of the property have generated a tsunami of calls for Congress to act and for the Supreme Court to adopt a formal code of conduct for the Justices.

The Chairman of the Senate Judiciary Committee, Senator Richard Durbin invited Chief Justice Roberts to appear before the committee to give testimony on the subject. Roberts replied with a “respectful” refusal which was more a refusal than respectful. “Testimony before the Senate Judiciary Committee by the Chief Justice of the United States is exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.”

Chief Justice Roberts went on to note that two Chief Justices appeared before the committee for testimony about routine matters of judicial administration involving judgeships in lower courts in 1921 and 1935, and that Chief Justice Rehnquist had appeared before different committees on mundane matters. He also noted that the President, the head of the Executive Branch had never testified before the committee.

More importantly, Chief Justice Roberts attached a copy of a Statement of Ethics Principles and Practices which all current members of the Court have signed. This harks back to the 1991 resolution adopted by the Justices.

In effect, the Justices of the Court have subscribed to the Code of Judicial Conduct. However, the statement boldly proclaims: “Since then [1991] Justices have followed the financial disclosure requirements and limitations on gifts, outside earned income, outside employment, and honoraria. They file the same annual financial disclosure reports as other federal judges. Those reports disclose, among other things, the Justices’ non-governmental income, investments, gifts, and reimbursements from third parties.”

Except, not quite. Given the failures of Thomas and Gorsuch to disclose gifts and details of transactions, compliance has been less than robust.

separation of powers

The problem here is twofold. First, we have the separation of powers issue, i.e., whether Congress can dictate to the Justices what they can or must do. Second, there is the issue of enforcement.

The first concern is easily addressed. Obviously, Congress is not without power here. In fact, the Ethics in Government Act of 1989 does apply to the Justices as federal employees. The second concern is sketchier. The fact that the Justices voluntarily resolve to follow the substance of the Judicial Conference regulations does not formally bind them to do so. More importantly, there is no enforcement mechanism when it comes to noncompliance.

Whereas the Democrats are screaming for remedial action, the Republicans dismiss their concerns as an attack on the conservative justices and an attempt to tarnish Thomas’s legacy.

Is this really a tempest in a teapot at a substantive level? The argument runs along these lines. Even if Justice Thomas’ repeated indiscretion in accepting lavish gifts reflects tone deaf insensitivity, it is unlikely that any of his decisions was influenced by such gifts. He is the right-wing yahoo of right-wing yahoos on the court and has his own peculiar view of how the Constitution should be interpreted. He has been steadfast in his views, as erroneous as they may be, and out of step with his colleagues far too often for anyone to believe that he is the only justice who has found some brilliance that has eluded others over the centuries. Thomas would have ruled in his own conservative fashion regardless of the gifts.

But it is not that easy. For instance, Crow donated $175,000 for a new Clarence Thomas wing at the justice’s childhood library in Pin Point, Georgia. At the time, Crow was a national board member of the Center for the Community Interest, an advocacy group that filed amicus briefs with the Supreme Court espousing conservative views on cases. That same year, Politico revealed that Crow had given half a million dollars to a Tea Party group founded by Ginni Thomas, the wife of Justice Thomas, which also paid her a $120,000 salary.

The full scale of Crow’s benefactions has never been revealed. At a minimum, Thomas should not have accepted the gifts from a person so intimately involved with the business of the Supreme Court. He certainly should have disclosed the gifts. But there is the stench of corrosion of the ethical standing of the Supreme Court. And no matter how one slices it, Thomas is certainly made more comfortable in espousing his wacky judicial philosophy because the gifts are a tangible endorsement of his actions.

There is nothing illegal about what Gorsuch did or in Roberts’ wife getting paid for her work. The partner at the law firm has said he has never argued a case before Gorsuch or met him socially. “I’ve never spoken to him,” Duffy said. “I’ve never met him.” All of this begs the question why did Gorsuch not disclose the name of the purchaser? As for Jane Roberts, she certainly could have stayed away from law firms with cases before the Supreme Court. We certainly don’t know whether the whistleblower’s assertion that she received assignments because of who her husband is, are true. But unanswered questions about questionable ethics undermine the integrity of the court.

But that is not the end of the matter. The institutional integrity of the court is at stake. As the statement sent with Chief Justice Roberts’ letter to Senator Durbin of the Judiciary Committee pointed out, it is a matter of great consequence when a Supreme Court justice is called on to recuse himself or herself. The court’s members sit as a unit, all nine of them. A lower federal court judge can be replaced by a colleague. Such an option is not available to the Supreme Court. Thus, Justices have a duty to sit that precludes withdrawal from a case as a matter of convenience or simply to avoid controversy. And Individual Justices, rather than the Court, decide recusal issues. If the full Court or any subset of the Court were to review the recusal decisions of individual Justices, it would create an undesirable situation in which the Court could affect the outcome of a case by selecting who among its members may participate.

Catch-22 situation

This presents a Catch-22 situation. Even where Justices sit on cases on which they have expressed their views and indeed, appeared to give lectures in support of their views, there is no enforcement mechanism to ensure that only impartial justices will sit on a particular case.

In this light, it is high time that Congress enacted a binding code of ethics for Supreme Court justices. One easy step would be to make the extant Code of Judicial Conduct applicable to the Supreme Court along with the reporting requirements set by the Judicial Conference. Since the justices have already endorsed their adherence to both requirements, this is not a major step. Congress could also enact more stringent requirements for the recusal process. Selection on a random basis from appellate judges on senior status in the various circuit courts of appeal who have been vetted and rated by Congress as suitable to the task, will eliminate concerns about selecting or deselecting members of a panel on a given case.

The US constitutional structure is touted as one of checks and balances with power spread among co-equal branches of the government. Yet, whereas the President is the Commander-in-Chief of the Armed Forces, he cannot declare war. That power inheres in Congress and only in Congress. Similarly, Congress has the power to impeach judges and justices, even the President and other officers. Nowhere does the Constitution state that Supreme Court Justices are above the law or that they may choose to ignore codes of conduct applicable to all other judges. And, of course, Congress has the ultimate power of the purse to fund or not to fund adventures by the other branches of the government.



Mauritius Times ePaper Friday 5 May 2023

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