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One Thing Each Justice Can Do to Improve SCOTUS Ethics

Senate Democrats are poised to act on Supreme Court ethics as soon as next week, as it’s clear there’s little if any consensus among the justices about what they can and should do to tighten ethics rules and improve public trust.

But the nine don’t have to act in concert to make a positive impact; they could operate as a nine independent law firms and do nine separate things to help.

In that vein, here’s one thing each justice can do to help restore faith in the Supreme Court:

— Sell his last two stocks. He sold off his shares in Texas Instruments and Charter Communications in 2022 and is left with shares in Lam Research and Thermo Fisher Scientific. Owning individual stock is a recipe for unnecessary, and sometimes missed recusals, and blended funds, mutual funds and retirement accounts should suffice for retaining a foothold in the market.

— File his 2022 disclosure (coming soon: what we hope to see on it, plus his disclosure amendments)

— File his 2022 disclosure (coming soon: what we hope to see on it, plus his disclosure amendments)

— Confirm that she made an error not recusing from Penguin Random House petitions, seeing as how she’s earned $3.6 million from the company since becoming a justice, and state that she’ll recuse from future PRH petitions (here’s one we’re watching)

— Disclose how she got to Wyoming for her Oct. 2012 hunting excursion (p. 33) with Justice Scalia and whether the use of a hunting guide counts as a non-reportable “entertainment” gift under the personal hospitality exemption, e.g., “[…] entertainment received as personal hospitality of an individual need not be reported.”

— Release the details of his 2021 book deal with HarperCollins (which is a different book than his A Republic, If You Can Keep It with Penguin Random House). He disclosed last year that he was paid $250,000 in “royalty income” (should be fixed to “book advance”) by HarperCollins in 2021 but nothing in 2022 (see Barrett note below).

— Pledge to not meet with amici during open cases, as he’s done in the past.

— Release the details of her 2021 book deal with an imprint of Penguin Random House. She disclosed last year that she was paid $425,000 in 2021 for “book royalties” (should be “book advance”), albeit by Javelin Group LLC, a conservative consultancy founded by former Bush, Rumsfeld and McConnell aides that worked on securing the deal. Large advances — Barrett’s was reportedly $2 million — are typically paid out over several years, so it was a bit odd that she did not disclose any such income on her 2022 disclosure. Justice Thomas’ $1 million advance for My Grandfather’s Son, for example, was paid out over three calendar years, 2006-2008.

— Confirm that she made an error in not recusing in 21-1503, Lloyds Banking Group plc, et al., v. Berkshire Bank, et al., a petition concerning bank collusion and interest rates during the Great Recession. According to Jackson’s 2022 disclosure, she holds four Charles Schwab funds, and ownership of Schwab funds appears to be the reason that Chief Justice Roberts (owner of “Schwab Value Advantage M. Fund”) and Justices Kagan (“Schwab Money Market Fund Account”) and Gorsuch (eight such Schwab holdings) each recused. FTC brought this to the Court’s attention on Oct. 13, 2022, and the PIO wrote back, “[A]n internal conflict check that was undertaken prior to the September 28 Conference determined that Justice Jackson did not have a conflict of interest in No. 21-1503.” With KBJ’s disclosure now in hand, a re-check should occur.

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