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Documents Reveal New SCOTUS Ethics Lapses, Reconfirm Their Cross-Ideological Nature

Associated Press investigation mirrors one FTC undertook in 2019-20

A new AP investigation reveals that Supreme Court justices are using their positions to accept free trips at a level of luxury that most Americans will never see, often under the guise of “teaching” in far-flung locales like Iceland and Hawaii; are either oblivious to or don’t seem to care much about the propriety of helping their hosts fundraise; and are using public resources to obtain these perks and others, like securing the sales of hundreds if not thousands of copies of their autobiographies.

Nearly every sitting justice and several recently retired or departed justices, Republican and Democratic appointees alike, are implicated.

“A member of Congress would never be able to use her office to hawk her book or get a weeklong European hotel stay paid for in return for only a day’s worth of work. Yet that’s exactly what Justices Sotomayor and Kagan, respectively, appear to have done, demonstrating that the Court’s ethical lapses stretch across partisan lines and that conservative and liberal justices alike need to clean up their act,” FTC’s Gabe Roth said. “And the reporters didn’t need to fly to Waco (though I’m glad they did) to learn the nine aren’t doing enough to avoid participation in university fundraisers.”

“A code of conduct, while salutary, will not fix this. Instead, the justices need a wholesale reimagination of — and rededication to — their ethical responsibilities, which can start by avoiding fundraisers, agreeing not to use their staffs in service of their own enrichment and filing the same pre- and post-travel reports that lawmakers submit, detailing the costs of transportation, lodging, food and entertainment,” Roth added.

In addition, a rare statement from the SCOTUS press office implies that — as FTC has stated for years — Justice Sotomayor was in error for not recusing in several petitions involving her publisher, Penguin Random House. The Court told the AP that “an inadvertent omission failed to bring Penguin’s participation in several cases to her attention.” FTC cites three PRH-involved petitions from which Sotomayor should have recused (20-1227, 19-560 and 12-965), the latter two of which author-Justice Gorsuch should have recused from, as well. (Other recent lapses are listed here.)

We’ve been here before:
Fix the Court undertook a similar investigation to the AP’s in 2019-20, filing documents requests with 24 public universities at which the justices spoke during the four prior years, culminating in a report released in March 2020.

The documents we received are here; the press release is here; the report is here.

The takeaways from that report — none of which had been reported in the press or listed in the justices’ disclosures — included:
— Next to the guest list for a Chief Justice Roberts talk at the University of Minnesota in 2018, the words “100,000 pledge” were written in the margin next to the name of one invited guest, and Roberts was one of many justices that received a nice gift for his talk, albeit one under the then-$390, now-$480 reporting threshold
— Justice Thomas took a private plane, albeit not Harlan Crow’s, for his 2016 teaching appointment at the University of Florida’s law school (also noted in today’s AP story)
— Justice Alito was offered the school’s private plane for a 2017 event dedicating a new building at the University of South Carolina’s law school, yet that was canceled due to a hurricane, and he appears to have taken business class when he finally made it there
— For her 2016 commencement talk at the University of Rhode Island, Justice Sotomayor received a business class flight, a motorcade from the airport and up to 11 free rooms for herself, friends and security staff at the state’s nice hotel, along with some type of “engraving” and the purchase of 125 signed copies of My Beloved World by the campus store
— Justice Kagan received a free ticket to a University of Wisconsin football in the chancellor’s box, along with UW gear, for a speaking engagement during the Dean’s Summit, an annual event for the school’s donors, in 2017; her chambers agreed to send 18 signed photos of the justice as a thank-you, though UW did purchase the (unsigned) photos from the SCOTUS gift shop
— Justice Gorsuch received silver julep cups for his 2017 talk at the University of Kentucky (our report did not include Justice Kavanaugh, and Justices Barrett and Jackson were not on the Court at the time)

As noted in 2020, FTC’s goal with the project was not to dig up dirt or expose sensitive information about the justices, their staff or the colleges and universities that host them. Rather, the organization wanted to learn more about how the Court and its members operate beyond the rarified air of One First Street. The information FTC received was similar to the kinds of material made available by the executive branch via the Freedom of Information Act or by the legislative branch via various oversight statutes.

The 2020 report concluded: “The only way to maintain public confidence in the operations of the Court, to say nothing of its legitimacy when handing down decisions, is to demand of the third branch the same sorts of transparency measures that are standard in the rest of government. That so many questions remain – on the costs of the justices’ travel, whom they’re meeting with, what type of gifts they’re receiving – suggests that this is an area into which we should keep digging.”

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