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Here’s everybody with stricter ethics rules than the Supreme Court
Rick Newman, Senior Columnist – April 27, 2023
Ponder this: Most journalists at mainstream news organizations face far tougher ethical rules than the nine Supreme Court justices who decide monumental issues that directly affect the lives of millions of Americans.
The Associated Press’s rule on gifts allows its journalists to accept nominal offerings worth no more than $25 from anybody who could plausibly be the source of subject or a news story—even if it’s a personal friend. Most news organizations follow the AP guidelines or have a similar code.
There are no such rules at the Supreme Court. A troubling exposé by ProPublica recently revealed that Justice Clarence Thomas has accepted numerous lavish gifts from real-estate magnate Harlan Crow, including an Indonesian yachting trip worth as much as half-a-million dollars. Thomas also sold real-estate to Crow in what looks like a sweetheart deal for the jurist. Thomas’s fellow conservative, Justice Neil Gorsuch, also profited from a property deal with a wealthy friend, as if there’s some secret real-estate agency that only serves nine exalted judges, allowing them to avoid the vicissitudes of the normal market.
Thousands of US businesses and most of the federal government follow ethics guidelines meant to sustain trust in those organizations, protect their integrity, and prevent self-dealing. Nobody pretends those guidelines are perfect. People cheat. Businesses play dirty. Bosses cover up wrongdoing. But a basic code of ethics protects against legal liability and bolsters morale at most organizations in the country.
“Most companies take the code of ethics seriously,” says Rue Dooley, a knowledge adviser at the Society for Human Resource Management. “It’s a good way to regulate certain behaviors. It’s about building trust, sustaining credibility with vendors, clients, customers, patients, and stockholders.”
The executive branch of the federal government has an exhaustive set of rules governing what’s permissible, covering gifts, outside income, investments, property, financial disclosures, conflicts of interest and many other things. There’s a whole agency, the Office of Government Ethics, whose job is to oversee and enforce ethics rules in the executive branch.
The House of Representatives has a detailed code of ethics, with any gift valued at more than $250 requiring approval of the House Ethics Committee. In the Senate, the limit on gifts is $50. Both codes clarify what counts as a “personal friendship,” including possible conflicts of interest. The federal judiciary has its own code of ethics, with the same $50 gift limit as the Senate.
The Supreme Court, by contrast, is uniquely unbound by any behavioral rules. With the court under fire, Chief Justice John Roberts published an unusual note on April 25 outlining what he called the “foundational ethics principles” the justices follow. “The Justices … consult a wide variety of authorities to address specific ethical issues,” he wrote. These include guidelines for other judges and federal employees, various laws, scholarly articles, disciplinary decisions and advice from colleagues.
There are a couple of problems with Roberts’s reasoning, however. First, there is no single document or set of documents that represents the court’s code of ethics. If you go looking for it, you won’t find it. That’s an obvious recipe for confusion. Justice Thomas responded to the ProPublica exposé saying that years earlier, he “sought guidance from my colleagues and others in the judiciary and was advised that this sort of personal hospitality from close personal friends … was not reportable.” This would never fly in an organization with a formal policy and a process for approving or disapproving gifts.
That gets to another problem with the court: There’s no ethics enforcement mechanism. In virtually every other organization, somebody has the power to rule yes or no on a dodgy ethics question. In Congress, it’s the ethics committees. In the rest of the federal judiciary, there’s a chief judge or some other authority. At companies, bosses leading up to the CEO decide what’s acceptable, and they’re accountable if something goes wrong. At the Supreme Court, the chief justice has no such authority over any other justice. Justices are literally answerable to nobody. Roberts acknowledged this in his April 25 memo, pointing out that the organization that oversees other federal courts does not have jurisdiction over the Supreme Court.
Thomas claims that his rich buddy Harlan Crow is a “close personal friend who did not have business before the court,” at the time Thomas went on all-expense-paid luxury trips with him. A proper ethics inquiry would likely shred this defense. Crow is a politically active conservative who, along with his wife, has donated nearly $15 million to candidates and causes during the last 30 years. Almost all of that went to Republicans. During that time the court has heard numerous cases Republicans took a position on, such as three challenges to the Affordable Care Act, several matters involving former President Donald Trump, and the current legal challenge to President Biden’s effort to forgive student debt. Saying a major Republican donor has no interest in Supreme Court outcomes is either woefully naïve or completely disingenuous.
The Roberts defense is “wholly insufficient,” says Gabe Roth, executive director of Fix the Court, a nonprofit that advocates for more judicial accountability. “The Supreme Court should agree, or Congress should require them, to follow all the same rules on gifts, travel, and personal hospitality that Congress has to follow.”
A new bill in Congress would do just that. The Supreme Court Code of Conduct Act would require the court to adopt a formal set of ethics rules, appoint somebody to enforce them and publish an annual report on any violations or complaints about questionable activity by the justices. Prospects are dim, however, since Republicans who control the House are generally opposed. For the foreseeable future, the Supreme Court will govern itself and enjoy fewer strictures than most of the Americans it supposedly serves.
