Takeaway # 5: How the Phrase “Supreme Court Ethics” Became an Oxymoron
All of America’s judges, state and federal, are bound by a code of ethics and subject to sanction for violating that code – all except for nine. While it’s true the Supreme Court, under heavy public pressure, recently established written rules for self-governing themselves on matters of financial disclosure, conflicts of interest, recusal, etc., they still enjoy virtual immunity from sanction or punishment if they violate them. Nothing much has changed – only the rules that all judges must follow, and which Supreme Court justices should already and intuitively know they should be following, are now written down. For all intents and purposes, the justices simply agreed to write down and play by the long-established rules – except without umpires.
The court’s main reason for adopting its own code of ethics is to discourage Congress from putting umpires in the field. The court’s newly-adopted code asks each individual justice to be their own private, personal police force. Consequently, the rules are mere suggestions. A code written by Congress would carry the weight and authority of federal law and would address consequences for disobedience. Big difference.
Under a self-regulating regime let’s consider a justice who declines to disclose fabulous vacations normally costing oh, say, half a million bucks each, all provided and paid for by a billionaire with significant interest in how the court decides cases. What happens when the public finds out about the lavish trips? Well, the Chief Justice chews a few more Tums, the media cries foul for a couple of news cycles, and politicians make promises but nothing gets done. When confronted, the offending justice merely has to reply, “O gee, I didn’t know I had to do that,” and goes on his merry way – with impunity – to spend many more years exercising the sacred privilege of deciding the supreme law of the land. Meanwhile, he collects scrapbooks of numerous once-in-a-lifetime vacations, obtains financial relief for family members, continues to be the honored guest at gala events, and making speeches to friendly audiences followed by receiving awards to hang on his office wall. What does the billionaire Santa Claus get? The assurance that he’s got a Supreme Court justice in his corner.[1] And what does America get? Further decline in our faith, trust and confidence in the highest court in the land.
Now, with these toothless kittens of self-regulating rules of ethics in place, let’s look at another problem playing out right now. The Supreme Court has agreed to take Donald Trump’s appeal from the District of Columbia Circuit Court of Appeals on his delay tactic – er, excuse me – alleged claim of absolute executive immunity from prosecution for his abysmal acts and omissions between November 6 and January 6, 2021. Ginni Thomas, wife of Justice Clarence Thomas, was present at Trump’s “Go fight like hell” rally at the Ellipse the morning of January 6. From election day through January 6, she repeatedly texted Trump’s Chief of Staff, Mark Meadows, urging Trump to take action to stop a peaceful transfer of power and hold on to the presidency. Has Justice Thomas recused himself from this case on grounds that his wife and “best friend” was brazenly advocating for Trump’s unlawful actions to remain in power? So far, he hasn’t. Doesn’t that, at a minimum, appear to be a conflict of interest? If the court gives Trump absolute immunity, then Thomas’ best friend would likely escape criminal exposure.[2] Plus she would be in line for one of Trump’s preemptory pardons, if Trump gets elected.
Will Thomas recuse himself? If he hasn’t done so by now, then I doubt it.[3] He has a history of sitting on cases where he doesn’t belong. Several months ago, when the Supreme Court initially refused to get involved in a preliminary issue in the Mar-a-Lago documents case, there was one lone dissenter. Will Thomas also be the lone dissenter when the Supreme Court affirms the lower court’s ruling that no president enjoys absolute immunity? If so, then his want of impartiality and indifference to decency will shine bright as the sun. But no matter. He won’t suffer any consequence.
If Congress were to impose rules of ethics, a near impossibility given its current divisions, it would naturally put umpires out on the field to make fair-or-foul calls accompanied by sanctions for violators. There is already in place a mechanism to hear and adjudicate ethical complaints against lower federal court judges. Congress could use that body or one like it to investigate and prosecute complaints against Supreme Court justices. If found guilty, the offending justice would then be sanctioned. Currently, there are only four types of sanction: private censure, public censure, a request to resign, and a recommendation of impeachment to the House of Representatives.[4] If Congress would penalize judges with fines or reduction in or loss of pension, that would be a more effective deterrence.[5]
The big question remains: will the justices faithfully abide by their own self-governing rules? Throughout our history, most of our justices have been honorable people in whom adherence to ethics was already baked into their character. Accordingly, some of our current justices do not need to be bound by a code of ethics. However, some do, and, relying on their virtual immunity from accountability, they will likely continue weaving back and forth across the line. Aside from Thomas and Alito, who have failed to disclose billionaire-subsidized vacations, my main concern will be those justices who fail to recuse themselves from cases where there is or appears to be a conflict of interest. Having a voice and vote on matters in which any judge has a personal connection or a personal interest in the outcome is, to me, equivalent to judicial embezzlement.
And speaking of Clarence Thomas, recent revelations about the forgiven $267,000 loan from a friend for the purchase of a luxury motor home show that Thomas only paid the interest on the loan, and it’s uncertain if those payments were current when the loan was forgiven nine years later.[6] Thomas knew, or should have known that forgiveness of substantial debt amounts to a taxable event. There is no record of any disclosure of the debt being forgiven (a legal requirement), and no proof he paid taxes on his windfall. All this led one critic to say, “Justice Thomas clearly views his position on our nation’s highest court as a chance to upgrade his own lifestyle with no consequences.”[7]
The aphorism that one rotten apple spoils the whole barrel could not be more applicable than to the institution whose members are, and rightfully so, held to the highest standards of ethical conduct, both in and out of office. Never in my lifetime have I heard the words “unethical” and “Supreme Court justice” mentioned in the same sentence – that is, until recently. Conservative former Chief Justice William Rehnquist and liberal Associate Justice Elena Kagan both showed themselves to be above reproach when they were faced with an ethics issue in highly important cases. I believe it’s because they revere the office of judge and would never want to cast a stain upon the integrity of the judicial branch. And then guys like Thomas and Alito come along and turn the unwavering rectitude we’ve come to expect from Supreme Court justices into the fodder of late-night talk show comedians. What a shame.
The Takeaway: Rules without teeth are apparently meaningless to violators. Without umpires, the historically ethical justices will remain so, but don’t expect much contrition and repentance from the fallen.
Coming up next: Closing Argument
[1] Obviously, I’m referring to Justice Thomas and Harlan Crowe. Why did Crow pursue only one justice, if in fact that is what he did? Perhaps he believed the others were too ethical to be co-opted by him.
[2] She appears in the indictment as an unnamed, unindicted co-conspirator.
[3] Usually, judges recuse early on in the process. He’s had plenty of time to think about it, so, his silence is telling me he has made up his mind to stay in the case.
[4] There was a time when private or public shaming of a judge would have been considered a terrifying prospect and would have a significant deterring effect. I wonder if that’s the case today.
[5] However, Congress would have to remove the current shield that grants total immunity from sanctions to federal judges who resign before being found guilty of an ethics violation. Otherwise, a resignation before adjudication has no financial impact.
[6] Based on a report by Democrats in the Senate Finance Committee. Keep in mind that Thomas received a $500,000 advance on his autobiography around the same time the loan came up for renewal in 2004. Could he have used that money to pay off the loan? We’ll never know.
[7] Caroline Ciccone, president of Accountable.US.
Your Takeaway on the Takers that now predominate the Supreme Court is Well Taken. I have mentioned this in several published posts on this subject, and at the risk of repeating myself on your blog, I would note that during my law, school education at Stetson University College Of Law, while we frequently debated the wisdom vel non of Supreme Court decisions (read Dred Scott v. Sandford, Plessy v. Ferguson, Lochner v. New York, Korematsu v. United States, et al.), it never occurred to any of us to attack the motives of the robed gentleman who made the decisions.
Yes, we acknowledged that several of the justices and their decisions were blatantly racist, but acknowledged also that the country itself was racist, and the Supreme Court reflected and validated that fact. It frankly never occurred to us to employ “presentism” on the author of Dred Scott, Roger Taney. We just chalked it up to blatant racism by a virulently racist man. (Ironically he was the first Catholic on the Supreme Court and also a slaveholder.)
Of course, we were vaguely aware of the impeachment of associate justice Samuel Chase, and the ignominious departure of associate Justice Abe Fortas, but those were the only two members of the court about whom we spent much time at all talking about ethics. It never occurred to us that any of the justices could have their incomes limitlessly supplemented by billionaires without consequence.
I do remember discussing Nixon appointees Haynesworth and Carswell, (both of whom went down in flames), but largely owing only to the fact that the Carswell nomination was defended by a senator with this unintentionally but wickedly funny statement:”Even if he is mediocre, there are a lot of mediocre judges and people and lawyers, and they are entitled to a little representation, aren’t they?”
In looking at the six justices who make up the supermajority on the Roberts court, I realize now that every constitutional law course should be split into two sections, one for the decisions, themselves, and the other for the nefarious motives of the justices who made them.
All six members of this supermajority learned only one lesson from Robert Bork: “If I want a seat on the court, I need to lie about that adherence to precedent thing.” In fact, all of them lied about a lot of things during their confirmation hearings, and we can prove that just by reading their opinions. The Dobbs decision alone is “Chock Full of the Nuts.” (Arcane reference to old coffee ad intended.)
Let me know what you think.
Very little daylight between you and me, my brother. Sometimes, what you write, I feel. I invite other readers to send comments. I’d like to have some dialogue going.