No summer break for Supreme Court ethics debate
The drumbeat of news about U.S. Supreme Court ethics has not taken a summer recess, even though the justices themselves have.
Just weeks after the court finished a term full of landmark cases and marked by a backdrop of months of revelations about certain justices accepting lavish gifts of travel and hospitality, the Senate Judiciary Committee advanced a bill on July 20 that would require the court to adopt a code of conduct.
“This legislation will be a crucial first step in restoring confidence in the court, after a steady stream of reports of justices’ ethical failures has been released to the public,” Sen. Richard J. Durbin, D-Ill., and the chairman of the committee, said.
Republicans on the committee, who voted along party lines against the Supreme Court Ethics, Recusal and Transparency Act, were quick to point out that the bill faces tough sledding on the Senate floor.
“This bill is dead as fried chicken,” Sen. John Kennedy, R-La., said at a Capitol Hill news conference a day earlier, referring to the fact that the measure would be unlikely to muster enough support to get past a Republican filibuster.
“It doesn’t have 60 votes,” he said.
Still, to longtime advocates of Supreme Court ethics reform, the Senate committee action was a modest step forward, one that signals a shift in tactics among some lawmakers and which might help prod the court itself to act.
“To me, an ethics code with stronger recusal protocols and travel rules would assist the court in helping the American people believe that they are doing their jobs without favor or corruption,” says Gabe Roth, the executive director of Fix the Court, a Brooklyn, N.Y.-based organization that for years has worked on ethics and transparency issues involving the high court.
Amanda Frost, a law professor at the University of Virginia and an expert on judicial ethics, argues that it is well within the power of Congress to impose stronger ethics rules on the justices, and she is in favor of lawmakers doing so, though she has not endorsed the SCERT measure or any of several other pending bills on the topic.
“I was hopeful that all the talk this year would inspire the court to act itself,” she says. “I’m less optimistic of that now.”
Planes, yachts and bulk book purchases
For those who haven’t been paying attention, that drumbeat of ethics controversies just this year include the following:
—The nonprofit news organization ProPublica reported this spring that Texas billionaire and Republican donor Harlan Crow for years provided travel and accommodations, including on a mega yacht, to Justice Clarence Thomas. The justice said colleagues and others in the judiciary advised that he wasn’t required to disclose those trips, but he would abide by recently updated regulations from the Judicial Conference of the United States making clear such travel must be reported.
—ProPublica also reported that Justice Samuel Alito flew on a private plane and stayed at a private lodge in Alaska for a salmon fishing trip with hedge fund manager Paul Singer. Alito later did not recuse himself from matters before the court involving one of Singer’s business entities. Alito took to the op-ed pages of the Wall Street Journal to defend his actions, saying he was not required to report the free travel because the private plane seat would have otherwise been unoccupied and the plane met the definition of a “transportation facility” that fell under a reporting exception for personal hospitality.
—On July 11, the Associated Press reported that employees of Justice Sonia Sotomayor prodded colleges and libraries to buy copies of her books in conjunction with speaking engagements. The court’s public information office said that when a justice such as Sotomayor is invited to participate in a book program, “chambers staff recommends the number of books [for the sponsoring organization to order] based on the size of the audience so as not to disappoint attendees who may anticipate books being available at an event.”
Republican lawmakers and others have come out against ethics legislation, arguing that Democrats and their supporters are seeking to delegitimize the Supreme Court.
“For months now, the justices of the court have been the subject of an uptick in pearl-clutching and hysterics from the political left and their media allies,” Senate Minority Leader Mitch McConnell, R-Ky., said on the Senate floor on July 19. “I believe in the integrity and honesty of each member of the court, and the justices and their families should continue to ignore desperate attacks peddled by Democrats and organs of yellow journalism.”
Sen. Lindsey Graham of South Carolina, the ranking Republican on the Judiciary Committee, looked to Democrats a day later as he said, “What you’re trying to do is not improve the court; you’re trying to destroy it as it exists. And it’s been a long, ongoing effort here.”
Leonard A. Leo, a co-chairman of the Federalist Society and a conservative activist whose friendships with Thomas and Alito figured into the recent Pro Publica stories about their travel, said on a recent podcast that the left does not really believe that members of the court are influenced by outside relationships or shows of hospitality offered to them.
“I don’t think anyone can seriously believe that these justices are influenced by outside friendships, you know, a dinner party, a fishing trip, a plane ride,” Leo told a friendly interviewer on the Maine Wire podcast on July 17.
Congressional activity moves as ethics discussion stalls
The SCERT bill, sponsored chiefly by Sen. Sheldon Whitehouse, D-R.I., would not only require the justices to adopt their own code of conduct, but would create a mechanism to investigate alleged violations, tighten disclosure and transparency obligations when a justice has a connection to a party or amicus before the court, and require the justices to explain their recusal decisions to the public.
“We are here because the highest court in the land has the lowest standards of ethics anywhere in the federal government,” Whitehouse said at the Judiciary Committee meeting. “And justices have exhibited much improper behavior, not least in hapless efforts to excuse the misdeeds.”
The Supreme Court itself has largely taken the view that ethics is a matter for it to handle and not Congress to impose. In 2011, Chief Justice John Roberts wrote in his year-end report that the justices frequently consult the Code of Conduct developed by the U.S. Judicial Conference and which by federal law applies to all lower federal court judges.
In 2019, Justice Elena Kagan testified before a House subcommittee (during an appearance regarding the court’s budget) that the court was “seriously” considering adopting its own code of conduct. The Wall Street Journal reported on July 20 that Roberts has tried for several years to get his colleagues to discuss the issue, but the effort had stalled.
In April, the chief justice declined an invitation from Durbin to appear before the Judiciary Committee to discuss ethics, citing “separation of powers concerns and the importance of preserving judicial independence.”
Roberts’ letter to Durbin included a five-page “Statement on Ethics Principles and Practices,” signed by all nine justices and discussing their practices regarding financial disclosure, outside income, gifts, recusals and concerns about security.
In May, the chief justice made a rare public statement on the topic, telling the American Law Institute that he and his colleagues were continuing to weigh steps to address ethics.
One modest change emerged this spring as two justices—Kagan and Ketanji Brown Jackson—began noting their reasons for recusing themselves on several routine orders. But at least three justices—Brett Kavanaugh, Alito and Sotomayor—recused themselves from routine orders this spring without giving a reason.
An anguished view from a lower federal court judge
While many approach the ethics debate from a position of advocacy, one senior federal district judge drew notice earlier this month with a short but pointed op-ed in the New York Times.
“What has gone wrong with the Supreme Court’s sense of smell?” Judge Michael Ponsor of the U.S. District Court for the Western District of Massachusetts wrote on July 14. He said federal judges frequently face ethical quandaries, recalling a time when he turned down some choice Boston Red Sox tickets offered by an attorney who seemingly had no untoward motives.
“The recent descriptions of the behavior of some of our justices and particularly their attempts to defend their conduct have not just raised my eyebrows; they’ve raised the whole top of my head,” Ponsor wrote.
Frost, the University of Virginia law professor, says that she was encouraged that at least one account has emerged about allegedly ethically challenged conduct by a justice appointed by a Democratic president: the Sotomayor book promotion story.
“To the extent that makes people view this as not just going after conservative or Republican-appointed justices, I think it is helpful,” she says.
Roth, of Fix the Court, agrees. “The justices themselves have acknowledged they can improve their ethics,” he says. “This isn’t something that should be passed off as a matter of partisan motives.”
ABAJournal.com: “Supreme Court justices should follow binding code of ethics, ABA House says”