List suggests urgent need for Supreme Court Code of Conduct

When it comes to professional responsibility, Supreme Court justices are famous for not abiding by any particular set of rules. If you’re on the Court, there’s no binding code of conduct, and the federal ethics and recusal laws are mere suggestions.

In general, though, judges at any level should maintain integrity and decency on and off the bench. They should not accept expensive gifts or extravagant trips or participate in cases in which they have a financial interest in a party. They should refrain from political activities or lending their names to fundraising events.

The nine justices have collectively flouted these rules and more.

Below is a list of their most recent ethical lapses in chronological order. Most of these come from press reports, these links and other posts on FixTheCourt.com. For each justice, the lapse we see as most egregious is highlighted.

FTC is releasing this document as the House Judiciary Committee plans a March 8 hearing on its Supreme Court Ethics Act. Though the prior existence of a SCOTUS Code of Conduct would not have solved all the issues below, it would, as legal ethics scholars have often said, set expectations for justices’ behavior and would encourage deeper thinking about one’s ethical responsibilities. (Last we asked, 89% of Republicans, 85% of Democrats and 80% of Independents wanted the justices to follow a formal ethics code, see p. 131.)

Current justices’ recent ethical lapses (also here)

Chief Justice John Roberts
— Failed to recuse in 14-972, ABB Inc., et al. v. Arizona Board of Regents, et al. (cert. denied), despite owning shares in Texas Instruments stock, a party on the ABB side. (2015)
— Initially failed to recuse in a merits case, 14-1538, Life Technologies Corp. v. Promega Corp., despite owning shares in Thermo Fisher Scientific, which owns Life Technologies; did recuse after the error was brought to his attention after oral argument. (2016)
— Failed to recuse in 17-1287, Marcus Roberts et al. v. AT&T Mobility (cert. denied), despite owning shares in Time-Warner, which had recently merged with AT&T. (2018)

Justice Clarence Thomas
— Accepted private plane rides and gifts, including a bible once owned by Frederick Douglass valued at $19,000, from financier Harlan Crowe. Crowe also donated $500,000 to help Ginni Thomas establish Liberty Consulting in 2011, a platform she used to lobby against laws like Obamacare that were before the Court; gave $175,000 to a library in Savannah to name a wing after Thomas and raised millions to build a museum in Thomas’ hometown of Pin Point, Ga. (multiple years)
— Attended a Koch Industries-backed retreat in Palm Springs, Calif., at a time in which Koch was bankrolling several litigants with cases before the Supreme Court (2008)
— Name was used in promotional materials for the nonprofit NRA Foundation, which stated that its 2009 National Youth Education Summit included “exciting question and answer discussions with [the] wife of Supreme Court Justice Clarence Thomas.” (2009)
— Was found to have omitted data on five years of Ginni’s employment (2003-07), where she earned $686,589 from the Heritage Foundation, from his annual financial disclosures (2011)
— Attended the annual Eagle Forum conference, which, at up to $350 a head, may have been a fundraiser. Ginni Thomas used the justice’s appearance as a fig to increase attendance, urging in promotional materials that prospective attendees come to hear “my amazing husband.” (2017)
— Participated in 17-965, Trump v. Hawaii, though Ginni earned more than $235,000 total in 2017 and 2018 from the Center for Security Policy, whose founder Frank Gaffney signed an amicus brief in the case. (2017-18)
— Prominently displays in his Court chambers a photo of Vice President Mike Pence’s swearing-in, which Thomas presided over, that’s signed by Pence. (2017-present)
— Omitted from his financial disclosure report the reimbursements for transportation, food and lodging he received from the law schools of the University of Kansas and the University of Georgia, where he taught that year. (2018)
— Documentary about his life financed by several groups, including the Koch Foundation, Judicial Education Project and Scaife Foundation, that funded Supreme Court litigants and amici. (2020)
— May have been in contact with Fla. Gov. Ron DeSantis possibly around the time in which Florida was a respondent in 21A247, Ohio v. OSHA, et al., over the federal test-or-vax mandate. (2021)
— Failed to recuse in the petition 21A272, Trump v. Thompson, over the Jan. 6 Committee’s access to documents related to the insurrection, even though Ginni signed a letter in December denouncing the Committee’s very existence. It’s also possible she was in touch with White House officials on or around Jan. 6, 2021, and documents relating to her might be turned over to the Committee. (2022)
— Is participating in 20-1199, Students for Fair Admissions Inc. v. President & Fellows of Harvard College, even though Ginni sits on the board of the National Association of Scholars, which filed an amicus brief in the case. (2022)

Justice Stephen Breyer
— Failed to recuse in merits case 14–840, FERC v. EPSA, despite owning shares in Johnson Controls, a party on the EPSA side. Breyer learned about the conflict the day after oral argument and sold the stock. (2015)
— Attended a $500-per-plate dinner at the University of Texas at Arlington with finance, legal and oil executives ahead of his talk at the school. The high price suggests the event was a fundraiser. (2016)
— Along with Alito, failed to recuse in 18-6644, Feng v. Komenda and Rockwell Collins, Inc. (cert. denied), though he owns shares in Rockwell’s parent company, United Technologies Corp. Said he had “no way of knowing” about the conflict since Rockwell didn’t file a response, which is spurious reasoning. (2019)
— Nothing wrong with justices voting but as of 2020 was a registered Democrat. (2020)
— While asking a question during oral argument in a public charge case, apparently gave away the result in 20-601, Cameron v. EMW Surgical Center, where Ky. Attorney General Daniel Cameron asked to intervene to defend a state law when no other governmental representative would defend it. (2022)

Justice Samuel Alito
— Failed to recuse in merits case 07-582, FCC, et al., v. Fox Television, et al., despite holding 2,000 shares of Disney stock on behalf of his minor children. ABC, which Disney owns, was a party on the respondents’ side. (2008)
— Failed to recuse in merits case 17-290, Merck Sharp & Dohme Corp. v. Albrecht, despite owning shares in Merck. Eventually sold shares and unrecused. (2017-2018)
— Along with Kavanaugh, met with the head of the National Organization for Marriage at the Supreme Court. NOM submitted an amicus brief in the merits cases 17-1618, Bostock v. Clayton Co.; 17-1623, Altitude Express v. Zarda; and 18-107, R.G. & G.R. Harris Funeral Homes v. EEOC that were unresolved at the time. (2019)
— Attended Secretary of State Mike Pompeo’s taxpayer-funded Madison Dinner with other politicians and GOP donors. (2019)
—  Along with Breyer, failed to recuse in 18-6644, Feng v. Komenda and Rockwell Collins, Inc. (cert. denied), though he owns shares in Rockwell’s parent company, United Technologies Corp. (2019)
— Speech to Federalist Society annual convention included discussion on COVID’s impact on religious exercise at a time when cases concerning the topic remained active at the Court. (2020)
— Failed to recuse in 20-6256, Valentine v. PNC Financial Services, et al. (cert. denied), where one of the respondents was PNC Bank, whose shares Alito owns. (2021)
— Chillingly, given the power imbalance between a justice and a journalist, quoted directly from a journalist’s article on the “shadow docket” in speech attempting to rebut the justices’ increasing use of emergency orders to make impactful rulings. (2021)

Justice Sonia Sotomayor
— Failed to recuse in 12-965, Greenspan, v. Random House (cert. denied), even though the respondent, her book publisher, had months before spent tens of thousands of dollars sending her around the country to promote her autobiography. (2013)
— Omitted from financial disclosure that the University of Rhode Island paid more than $1,000 for her round-trip flight for a commencement speech, as well as up to 11 rooms in one of the state’s fanciest hotels for her, her security detail and possibly some family friends. The trip included a five-car motorcade from the airport, and URI ordered 125 copies of her autobiography for the appearance. (2016)
— Failed to recuse in 19-560, Nicassio v. Viacom, et al. (cert. denied), where Penguin Random House was a party on the side of the respondents. By this point, Sotomayor had earned more than $3 million from her book contracts with PRH since becoming a justice. (2019-20)
— Initially failed to recuse from merits case 19-518, Colorado Department of State v. Michael Baca, et al., despite her close friendship with Polly Baca, one of the respondents. After some months, she did recuse. (2020)

Justice Elena Kagan
— Failed to recuse from several Obamacare merits cases — including 11-393, NFIB v. Sebelius; 14-114, King v. Burwell; 19–840, California v. Texas — even though she was the U.S. solicitor general at the time the White House and her office were crafting the legal defense of the law. (2011, 2014 and 2020)
— Initially failed to recuse in the (argued and reargued) merits case 15–1204, Jennings v. Rodriguez, despite her previous work on the case when U.S. solicitor general. Stepped aside when the error was brought to her attention. (2016 and 2017)
— A speech she gave at the University of Wisconsin Law School was part of its Dean’s Summit, which is an annual gathering for those who pledge at least $1,000 per year to the school. (2017)
— Nothing wrong with justices voting but as of 2020 was a registered Democrat. (2020)
— Failed to recuse in 19-720, U.S. v. Briones, Jr., a case that was remanded to the Ninth Circuit, even though she had previously participated in an earlier version of this case. (2021)

Justice Neil Gorsuch
— Gave a talk at Trump International Hotel in Washington to The Fund for American Studies. TFAS is an associate member of the State Policy Network, whose Illinois-based partner organization was at the time representing Mark Janus in a major union dues case, 16-1466, Janus v. AFSCME, that was argued the following year. (2017)
— Failed to recuse in 19-560, Nicassio v. Viacom, et al. (cert. denied), where Penguin Random House was a party on the side of the respondents. Gorsuch has earned more than $650,000 from his book contracts with PRH since becoming a justice. (2019-20)
— Nothing wrong with justices voting but as of 2020 was a registered Republican. (2020)
— Spoke at a Florida Federalist Society event that was closed to the press and included appearances by Gov. Ron DeSantis and former Vice President Mike Pence. (2022)

Justice Brett Kavanaugh
— Told the Senate Judiciary Committee during his confirmation hearing, “And as we all know, in the United States political system of the early 2000s, what goes around comes around,” among other musings. Unclear what this was in reference to. (2018)
— Along with Alito, met with the head of the National Organization for Marriage at the Supreme Court. NOM submitted an amicus brief in the merits cases 17-1618, Bostock v. Clayton Co.; 17-1623, Altitude Express v. Zarda; and 18-107, R.G. & G.R. Harris Funeral Homes v. EEOC that were unresolved at the time. (2019)

Justice Amy Barrett
— Americans for Prosperity spent more than $1 million to help get Barrett confirmed, and she did not recuse from the merits case 19-251, Americans for Prosperity Foundation v. Bonta. (2021)
— Gave a speech at the McConnell Center at the University of Louisville, from which video recording or streaming was prohibited, standing next to Minority Leader Mitch McConnell during which she exhorted the public not to view the Court as political. The speech was preceded by dinner with Barrett, McConnell and 12 to 15 of the senator’s friends. (2021)

Former justices’ recent ethical lapses

Justice Ruth Bader Ginsburg
— Likened a Sen. Grassley proposal to create a judiciary inspector general’s office to Stalinism, saying that such oversight “is a really scary idea” that “sounds to me very much like [how] the Soviet Union was.” (2006)
— Was a featured presenter at the 100th anniversary gala of liberal magazine The New Republic. Worse, the event was underwritten by Credit Suisse, which earlier in the year was a party in a Court petition. (2014)
— Gave an interview to The New Republic in which she offered a dim view of a Texas anti-abortion law, HB2. The law was eventually challenged all the way to the Supreme Court, and Ginsburg did not recuse from the case (2014-16).
— Called then-candidate Donald Trump a “faker” with “an ego” in an interview with CNN. Said she couldn’t “imagine what the country would be [like] with Donald Trump as our president” in an interview with the New York Times. Later apologized, saying, “My recent remarks […] were ill-advised, and I regret making them. Judges should avoid commenting on a candidate for public office.” Ginsburg never recused from a case in which President Trump was a litigant. (2016; 2017-2020)
— Accepted a lifetime achievement award from the Genesis Prize Foundation, which came with a $1 million in prize money that she later donated (2017)
— Accepted the $1 million Berggruen Institute prize for philosophy and culture (also donated the money). (2019)
— Nothing wrong with justices voting but as of 2020 was a registered Democrat. (2020)

Justice Anthony Kennedy
— Spoke to the Trump presidential campaign as the campaign was compiling a list of prospective Supreme Court nominees. (2016)
— Initially failed to recuse in merits case 17-269, Washington v. U.S., despite his previous work on it as a lower court judge. Stepped aside once the error was identified. (2018)

Justice Antonin Scalia
— Voiced his opposition to tribunals for Guantanamo detainees weeks before the Court heard a case on that issue (from which he did not recuse, despite public outcry), saying, “We are in a war. We are capturing these people on the battlefield. […] War is war, and it has never been the case that when you capture a combatant, you have to give them a jury trial in your civil courts. It’s a crazy idea to me.” (2006)
— Attended Koch Industries-backed retreat in Palm Springs, Calif., at time in which Koch was bankrolling several litigants with cases before the Supreme Court (2007)
— Addressed a closed-door, closed-press event, called a  “Conservative Constitutional Seminar,” hosted by the Tea Party Caucus. (2011)
— Flew on a private plane, furnished by John Poindexter, from Houston to Marfa, Tex., to stay for free in a $700-per-night room on Poindexter’s ranch, where Scalia sadly passed away. Poindexter was a 2015 Supreme Court litigant in 15-150, Hinga v. MIC Group, cert. denied; Poindexter’s company, J.B. Poindexter & Co., owns MIC Group. (2015-16)