The Supremes: Ethics as a “Suggestion”

The U.S. Supreme Court, its public approval ratings and reputation sagging, is responding with a new code of conduct in which the nine justices decide by themselves the “best practices” for avoiding conflicts of interest and recusal from pending cases.

In words of John McKay, former U.S. Attorney for Western Washington, “The ‘code’ was only issued to clean up ‘misunderstandings,’ according to Chief Justice John Roberts. Like, misunderstanding that you probably shouldn’t accept a luxury RV worth a quarter of a million dollars or luxury trips from persons with interests before the court.”

The code asks justices not to play a part in cases where they have a professional connection or personal interest.  Compliance is entirely voluntary and based on the judgment of the justice. By contrast, U.S. Court of Appeals and District Court judges are required to comply with a federal Judicial Conduct and Disability Act.

While trying to be charitable, court critic Sen. Sheldon Whitehouse, D-Rhode Island, pointed to the document’s glaring deficiency. “This is a long overdue step by the justices,” said Whitehouse, “but a code of ethics is only binding if there is a mechanism to investigate possible violations and enforce the rules.”

In observing behavior of the current justices, one is reminded of words of detective Frank Drebin in The Naked Gun movie: “Nothing to see here.”  Keep in mind that the Hobbs decision, overturning Roe v. Wade, was written by Supreme Court Justice Samuel Alito. Weeks after it was issued, Alito was flown to Rome by the University of Notre Dame Law School’s Religious Liberty Initiative.

Alito was featured speaker at a gala dinner in which he thanked the group for its “warm hospitality” and providing a room which “looks over the Roman Forum.” He delivered a snarky speech mocking critics of his abortion ruling. The justice’s hosts were a group that has filed numerous “friend of the court” briefs in pending cases.

An investigation by ProPublica disclosed that Supreme Court Justice Clarence Thomas and wife Ginny have taken vacations on private jets and luxury yachts, the property of billionaire friend Harlan Crow. The value of these trips — hundreds of thousands of dollars. Yet, Thomas disclosed none of this travel in his financial filings.  Ginny Thomas was active in President Trump’s bid to overturn results of the 2020 election. Yet Thomas did not recuse himself from cases involving the attempted coup.

All this is nothing new. In 2001, Justice Antonin Scalia flew down to Louisiana on Air Force Two with then-Vice Cheney for a duck hunting trip hosted by an oil industry executive.  At the time, a legal challenge to Cheney’s decision to keep secret proceedings of his energy task force was pending before the Supreme Court.

The Sierra Club challenged Scalia to recuse himself from the case. Scalia angrily refused, declaring in a statement: “If it is reasonable to think that a Supreme Court justice can be bought so cheap, the nation is in deeper trouble than I imagined.”

Liberals, too, can play the conflict game. The Sierra Club was plaintiff in a challenge to the U.S. Forest Service decision to approve Disney’s plans for a big ski resort in California’s Mineral King valley. Supreme Court Justice William O. Douglas was a director of the club. “Wild Bill” resigned from the board and participated in the case, writing a famous dissent when the brethren ruled that the Sierra Club lacked standing to sue. (Disney later canceled the Mineral King resort and the valley became part of Sequoia National Park. It is still wild.)

Supreme Court Justice Elena Kagan has recused herself from cases handled when she was Solicitor General and suggested the need for a code of ethics.  “Our whole system is one of checks and balances: We’re not imperial and we too are part of a checking and balancing system in various ways,” she told a judicial conference this summer in Portland.

But Roberts sounded irritable unveiling the code, as if a press had forced this unwelcome action on the Court. “The absence of a code has led in recent years to the misunderstanding that the justices of the court, unlike all other jurists in this country, regard themselves as unrestricted by ethics rules,” he wrote. “To dispel this misunderstanding, we are issuing this code which largely represents a codification of principles that we have long regarded as governing our conduct.”

Oh, c’mon.  As University of Virginia law professor Amanda Frost told The New York Times, “The problem is how to give these rules teeth. Especially in light of the fact that there have been repeated violations of these very rules.”

Just look at Clarence Thomas. He has traveled the world on Harlan Crow’s ticket. Crow paid the $6,000-a-month boarding school tuition for Thomas’ grandnephew. He spent $133,000 to buy properties in Savannah, Georgia, from Thomas and his relatives, one of which is a house in which Thomas’ mother still lives. None of these deals was reported.

Thomas never repaid a “substantial portion” of a $267,230 loan from another wealthy friend, Anthony Weller, that was used to buy a luxury RV, according to a Senate Finance Committee investigation. It is unclear whether he paid taxes on a “significant amount of taxable income” realized by not repaying the loan.  The RV loan was never reported on the justice’s financial disclosure form.

The billionaire buddy of Justice Alito flew the judge on his private jet to Alaska’s Bristol Bay for a fishing trip, with stay at the King Salmon Lodge. Alito has justified failure to report the trip on grounds that it constituted “personal hospitality.” Besides, Alito has responded, he was occupying “a seat that, as far as I am aware, would have otherwise been vacant.”

In his 2011 report on condition of the federal judiciary, Chief Justice Roberts declared: “I have complete confidence in the capability of my colleagues to determine when recusal is warranted.” They were, he declared, “jurists of exceptional integrity and (unquestioned) character and fitness.”

Such is not always the case, especially as suggested by actions of Thomas. He has simply ignored the code of conduct which the court is now adopting. As Sen. Whitehouse points out: “Justices are supposed to recuse themselves from cases where they have a personal interest but Thomas has never been asked about his wife’s January 6 (2021) role and what he knew.”

The Supreme Court is justifiably referred to in news stories as “the high court.” There is none higher. But our democracy is anchored on the principle of accountability. It’s time for the Supremes to drop anchor on some specific and tough requirements.