A Supreme Court Code of Ethics Must Be Enforceable
Conservative billionaire Harlan Crow gave Justice Clarence Thomas and his family gifts of luxurious vacations and travel worth over a million dollars. Crow also bought the home in which Thomas’ mother lives and permits her to live there without rent and he paid tuition at private schools for Thomas’ young ward. The revelations of Crow’s largesse are stunning not only for the fact that they occurred but also for their size and secrecy.
The Crow/Thomas story surfaced on the heels of whistleblower accounts of efforts by the religious right to lobby members of the Court on abortion and to buy access to the justices. It also focused a spotlight on benefits other justices received from third parties, including the six-figure payments Chief Justice Roberts’ wife receives each year from law firms who have matters before the Court and secret fees that Thomas’ wife received from an organization dedicated to overturning Roe v Wade.
Likewise, these revelations highlight the unreviewable standards for recusal by Supreme Court justices. Justice Thomas sat on at least one case in which production of his wife’s emails to White House figures was among the disputes in the case. Others, including the late Justice Antonin Scalia, have refused to recuse when their relationships with the parties or the controversy would have required disqualification of lower federal judges.
Lawmakers and others have renewed calls for the Court to adopt an ethics code or to have one forced on it. The justices adamantly refuse. In his recent submission to the Senate Judiciary Committee, Chief Justice Roberts insisted that the Court takes ethics seriously but carefully avoided accepting that the Court is bound by any formal rules or laws. In the process, he also avoided acknowledging that what Justice Thomas did was wrong.
In the clamor over whether any rules apply to Supreme Court justices (and if so which ones), the upshot is that Justice Thomas’s conduct violates both written and unwritten norms for judicial behavior.
It is certainly true, as the New York Times Editorial Board observed on May 25, that the justices cannot continue to insist that the rules that apply to everyone else do not apply to them. Public approval of the Court is at a “historic low.” It is not so clear, however, that an ethics code alone would cause the justices to be more ethical. A code would put to rest the uncertainty about whether the justices are bound by any rules at all, but it would likely not create any rules about what is acceptable judicial behavior that do not already exist or are not already understood.
Supreme Court justices should not need a new ethics code to know that they cannot conduct themselves as ordinary citizens do, that they must accept restrictions on personal and financial relationships for themselves and their families, and that they may not sit in cases in which an objective observer would question their impartiality. They do not need a new ethics code to know that they should not accept gifts of luxurious vacations that they could not otherwise afford, or gifts of tuition to a dependent. It cannot be a surprise that they have to disclose those gifts as well as sales of real estate to the same benefactor or rent-free lodging provided by the benefactor for a parent. They do not need a new lesson in ethics to know that they should not permit anyone to lobby them ex parte about pending cases.
Justice Thomas’s behavior — and the justices’ refusal to condemn it — reflects not a disagreement about ethics but an arrogance that detests criticism and a tone deafness to the appearance that the behavior itself creates. The reason why public approval of the Supreme Court is so low is that the American people do not trust it.
The Court itself does not need to be reminded that approval requires trust in its integrity; it has noted this more than once itself. In the 2009 case Caperton v. A.T. Massey Coal Co. Inc., Justice Kennedy quoted himself to reiterate: “The power and the prerogative of a court to perform [its] function rest, in the end, upon the respect accorded to its judgments. The citizen’s respect for judgments depends in turn upon the issuing court’s absolute probity.” That probity means conducting one’s life on and off the bench in a way that permits no suspicion that relationships or politics affect decisions.
Caperton embraces the principle that the appearance of bias is enough to violate due process. A judge may not sit on a case when objective analysis leads to the conclusion that the judge has a “temptation” that would “lead him not to hold the balance nice, clear, and true.”
Justice Thomas, unsurprisingly, joined Chief Justice Roberts’ dissent in Caperton, which argued that the Due Process Clause does not require recusal unless the judge has an actual financial interest in the case or when he presides over a criminal contempt case based upon defendant’s hostility to the judge. But Thomas has certainly not maintained that he is exempted from the majority’s holding or its rationale.
Concededly, Harlan Crow’s largess and Thomas’ failure to disclose it do not involve recusal, but they cannot be justified for that reason. The damage to public trust is no less severe than if he had sat on a case in which no one would believe he was impartial (which he did).
The justices are well aware that they have a duty to avoid the appearance that they have a “temptation” not “to hold the balance nice, clear, and true” in the cases before them. They have never implied that the standard is merely a suggestion or that the due process analysis does not apply to Supreme Court justices. Nevertheless, there is a dissonance between what the Court says all judges must do and what Supreme Court justices actually do.
Thomas’s conduct is the most recent, but not the only example of an ethical double standard at the Court. The justices’ resistance to scrutiny has a long history. Indeed, questions were raised about Thomas’ relationship with Crow as far back as 2011. Nor is it news that the three Trump justices owe their seats to Leonard Leo, a man who has devoted his adult life to overturning Roe v Wade and who is painted in a work commissioned by Harlan Crow seated with Clarence Thomas at Crow’s luxury retreat. Would a reasonable person think that the relationship Thomas has with Crow and Leo created a risk of his impartiality in matters Leo and Crow care about?
And then there is the image of Justice Scalia taking a ride to Louisiana on Air Force Two and sitting in a duck blind with his old friend Dick Cheney — all while Cheney was a party in a case Scalia was about to decide. Scalia defended his refusal to disqualify himself because, he said, Cheney was sued in his official and not his personal capacity. In fact, the suit challenged Cheney’s credibility as it maintained that his version of the membership of an energy policy group was false.
If these examples call to mind the onlooker who observed that the naked emperor did not have any clothes on, it is because the same phenomenon is at work. The emperor’s subjects could not imagine that he would have the bad judgment to parade about unclothed, so they pretended he did not do so until someone had the temerity to point it out.
The problem then is not only that Supreme Court justices need an ethics code in order to know what is right and what is wrong. Their own jurisprudence, as well as their comments, make clear that they know what fairness and impartiality mean and what they must do to ensure it. They do not like to be told when they are wrong. An ethics code will have no effect unless there is a consequence for violating it.
Justice Roberts’ submission to the Senate Judiciary Committee came as close as he could, without actually throwing down a gauntlet, to saying that no other branch of government can tell Supreme Court Justices how to behave.
The Court’s independence from the executive and legislative branches is of course relevant to the discussion. On the other hand, the Court no longer has the people’s trust. It can no longer afford to pretend that there is some doubt about whether a justice may take over a million dollars in luxury travel and lodging — not to mention tuition — and fail to disclose it and that the conduct does not even deserve review.
If the Court is planning to police itself, it must adopt not just a code but a mechanism to make its violation meaningful. Until it does that, the only consequence for an unethical justice is an increasing lack of public confidence in the Court’s integrity. This Court repeatedly demonstrates that such a consequence is not severe enough to be a deterrent.
William W. Taylor III is a founding partner of Zuckerman Spaeder LLP and one of the country’s foremost litigators.