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Reacting, And Overreacting, to the Justices' Perceived Ethics Lapses

A lot of ink has been spilled in a short amount of time, and it’s important to put it into perspective before figuring out how to proceed

Ahead of tomorrow’s Senate Judiciary Committee hearing on Supreme Court ethics, nonpartisan judicial watchdog Fix the Court is sharing research and resources with interested parties about the shortcomings of the justices’ ethics, gift and travel rules and is responding to recent stories that either would benefit from some additional context or suggest that additional fixes are needed.

“Having done this work for nearly a decade, two things are clear. One, the Supreme Court remains the most powerful, least accountable institution in Washington. Two, the blueprint to fix the lack of accountability without imperiling judicial independence already exists: requiring the justices to follow the same exacting rules on ethics, gifts and travel as members of Congress and top executive branch officials,” FTC’s Gabe Roth said. “And since the justices have dug their heels in with a pointless, unilluminating ‘ethics statement’ last week, it’s even clearer now that Congress must step in.”

As a reminder: This month marks a year since one law to place the judiciary on par with Congress — requiring judges and justices to post their annual disclosures and stock transaction reports online — was signed into law.

Is there a problem with ethics at the Supreme Court?

Yes, and it’s existed for a long time; here are the lapses from just the last few years. When there’s been a scandal in the past, the justices responded to it; months after Justice Fortas resigned over an outside income scandal, for example, the justices filed reports on outside income and gifts.

The justices today have offered no such equivalent fix after one of their own was found to have accepted lavish trips and gifts that any neutral observer would see as imperiling institutional integrity. The Judicial Conference’s recent “revised guidance” on the personal hospitality rules is not sufficient. The justices, after all, should strive to be the most ethical and not hide behind Article III and overhyped “separation of powers” concerns; to paraphrase a Justice Thomas quote, “separation of powers” is used “as a mantra when we don’t want to think.”

Thomas has time and again failed to file accurate disclosure reports — concerning his wife’s jobs, a missing real estate transaction and missing reimbursements. These are violations of the Ethics in Government Act, and simply asking for an amendment for the umpteenth time (cf., p. 2) doesn’t cut it. FTC in the last few days has identified several additional omissions from Thomas’ disclosures and is working to confirm them.

Financial disclosure omissions by all nine justices | FAQ on the Thomas-Crow affair

Back to the fixes

We envision two tracks:
1. Congress should require the Supreme Court to write and adopt a code of conduct that would set reasonable expectations for the justices’ conduct on and off the bench and give the public a sense of what constitutes ethical behavior. That the justices said last week (p. 2) they “consult a wide variety of authorities to address specific ethical issues” is not a particularly useful statement.

It’s worth noting that, beyond a code, part of a new SCOTUS ethics bill from Sens. King and Murkowski would give the Court’s Marshal more access to investigative resources should another major breach, like a leak, occur — a proposal Justice Alito seemed to support when he said last month the marshal “did a good job with the resources that were available to her” (emphasis ours).

2. The justices’ (and lower court judges’) travel and gift rules need an ethical upgrade. Like lawmakers, judicial officials should:
— Get approval from an ethics body before accepting a free trip or a gift, even from a friend, worth more than $250
— Get a free trip’s sponsor to file a report describing the purpose and agenda of the trip, as well as the expected costs — meaning dollar amounts — of transportation, lodging and meals
— File a report online within 30 days of returning from a free trip that lists in dollars the actual cost of transportation, lodging and meals
— Report if anyone who’s recently had cases before the Court, or has an open case, attended the trip or offered the gift

Currently, the justices don’t have an ethics office, don’t have to get approval to accept a free trip or gift, don’t have to file a post-trip report and don’t have to report if anyone with business before the Court attended the free trip with them or offered a gift. They merely post a single line on their annual disclosure up to a year and a half after the fact that offers few details. See justices’ old disclosures here.

“At a certain point, as more and more stories about the justices’ ethical lapses come out, opposition to reform becomes a political liability,” Roth added.

New stories suggest a need for more context — and new fixes

Finally, three additional stories about the ethics of the justices have recently been published, to which FTC responds below:

1. Justices’ ties to universities: generally fine, but more disclosure should be required
Both the New York Times and ABC News recently ran stories about the influence of certain universities and their law schools on the justices, looking at amicus filings, co-teaching in Europe and the like. We’ve long said it’d be preferable if more liberal justices spoke and taught at conservative-leaning law schools, and more conservative justices spoke and taught at more liberal-leaning law schools. (Hopefully, the Judge Duncan incident at Stanford was a wakeup call for civility.) But that’s not happening these days, and we’re worse off for it. We believe, to start, the public should know the full costs of the justices’ university-paid flights, hotels and meals, especially when a public university is involved.

In addition, requiring a statement in a law professor’s SCOTUS filing — merits stage, petition for cert. or amicus — disclosing an academic relationship within, say, the last two years, e.g., “I co-taught a class with Justice X last year,” or, “Four months ago, Justice Y spoke to one of my classes,” seems reasonable.

2. With Justice Gorsuch’s second-home sale, the real issue is vagueness in disclosure regulations
Was the 2017 sale of Justice Gorsuch’s second home newsworthy? Yes. Was it breathlessly so? No. FTC was not involved in the story but did ask for a correction: Gorsuch did not “make” $250,000 to $500,000 from the sale; he recouped an amount in there; we believe it to be about $360,000, which happens to be about how much he put in initially. That explains why the “gain code” on his report is left blank: the filing instructions tell filers to leave that field blank if you lose money or break even. That the home buyer’s identity was not required to be listed under federal law is an oversight Congress should fix.

Moving forward, might we suggest it’d be more instructive to put this in the context of other SCOTUS real estate transactions? Who did Justice Sotomayor buy her U Street and West Village condos from? Who controls the other 7/8th of the cottage Chief Justice Roberts part-owns in southern Ireland? What about Justice Breyer’s rental property in St. Kitts and Nevis — a well-known tax haven — or his land in New Hampshire? Had we the time and staff, we’d look into his 2016 Massachusetts land sale and the four SCOTUS petitions the buyer’s former employer won over the years by having cert. denied, with zero Breyer recusals.

3. Jane Roberts’ commissions
The recent story about the commissions that Chief Justice Roberts’ wife Jane has received for her legal recruiting work is largely much ado about nothing. Would we be in a better place if the legal profession were more diffuse with, say, 200 or 500 or 1,000 law firms bringing cases to SCOTUS? Sure. But we’re not, so Jane should not be criticized too harshly for earning a living with the help of some of the firms that happen to be frequent filers at One First Street. Like the free-trips-to-Europe example above, a line of disclosure in a SCOTUS brief — e.g., “I was recruited for this job by a Supreme Court justice’s spouse” — within two years of said recruitment should suffice.

“The one thing we know for certain is that more people are paying attention to the conflicts at the Supreme Court, both real and perceived, than ever before, and it’s better to disclose information than to be caught trying to hide something,” Roth concluded.

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