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Supreme Court Justices May Accept Gifts, Though They Probably Shouldn't. In Any Event, Here Are the Rules:

Supreme Court justices are generally permitted to accept gifts.

This is in contrast to members of the House and Senate, who generally cannot accept gifts, save with a few exceptions, like the gifts are small (under $50 in value) or given to them by close friends and family. There’s also a “personal hospitality exemption” for members of Congress, as well as for judges and justices.

Congressional gift regulations are posted here by the Senate Ethics Committee and here by the nonprofit Public Citizen. The Judicial Conference of the U.S., which oversees the lower courts, issues gift regulations for non-SCOTUS Article III judges, which are here.

Though rules governing SCOTUS gifts are not in statute, just 17 days after new gift rules for the political branches went into effect in 1991, Chief Justice William Rehnquist drafted a memo on behalf of himself and his colleagues saying they’d follow the same gift rules put in place for lower court judges. That memo remains in effect today.

So what are the gift rules for the justices?

As mentioned above, judges and justices can accept all sorts of gifts, but they may not accept gifts from litigants in their courtrooms.

Any gifts – whether flights, hotels, or physical presents – must be reported on their financial disclosures if the aggregate market value is above $415.

But of course, there are three major loopholes: (1) family gifts and (2) personal hospitality do not count as “gifts” that need to be reported. And for transportation, meals, lodging and physical gifts, (3) anything with a market value of $166 or less need not be aggregated for reporting purposes. Pages 35-36 of this PDF are helpful in explaining the rules with concrete examples.

These regulations are viewed as an extension of the gift rules in the Code of Conduct, whose Canon 4 simply states, “A judge should comply with the restrictions on acceptance of gifts and the prohibition on solicitation of gifts set forth in the Judicial Conference Gift Regulations.” The Code is not applicable to the justices, but the justices say they “follow” its guidelines.

How do gift rules come into play when justices are considering whether to recuse from, say, a case where the litigant has in the past given the justice a gift?

The recusal statute is a bit murkier. If someone gifted a justice a painting valued at $100,000, and that person later had a case before SCOTUS, you could see how the judge might have “a personal [and favorable] bias concerning a party,” per 28 U.S.C. §455(b)(1). But gifts are not explicitly mentioned in the statute.

Otherwise, if this example happened in federal district court, and a litigant on the opposite side knew about the painting, she could file an affidavit to get the gift-receiving judge removed, per 28 U.S.C. §144.

Can judges redact their gifts?

Judges can’t redact anything when they file their disclosures – it’s up to the Judicial Conference Committee on Financial Disclosure to decide on a line-by-line basis.

But judges can attach a note when they file their reports saying they’d like this detail or that detail redacted. In practice, we’ve seen only a handful of gifts redacted in the years we’ve been reviewing lower court judges’ disclosure reports, and we’ve never seen a justice’s gift redacted.

Even so, we do know that in the past, justices haven’t reported all their gifts.

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