Once described by James Madison as the “least dangerous branch” of federal government, the Supreme Court is now arguably both the most powerful and the least accountable.
Supreme Court justices hold lifetime appointments. Unlike other judges and elected members of government, they mostly police themselves on ethical and financial issues.
Why We Wrote This
Why does the highest court in the United States have the lowest ethical standards? That question has come to the fore after news that a GOP megadonor has been treating a Supreme Court justice to opulent vacations and loans of a private jet.
A ProPublica story chronicling decades of lavish presents and vacations bestowed on Justice Clarence Thomas and his wife has dealt a major blow to the high court’s integrity. And it comes at a time when fewer than half of Americans trust the court.
That trust has been declining for years as the court has reshaped American law, often in a direction further to the right than a majority of Americans. Notable examples include expanding the interpretation of the Second Amendment, eroding the Voting Rights Act, and overturning Roe v. Wade. Public distrust and anger have typically focused on specific rulings, however. Now, attention is turning to the court’s overall ethics and transparency – or lack thereof.
“The Supreme Court faces a potential crisis of confidence,” says Michael Waldman, president of the Brennan Center for Justice. “This kind of scandal, unaddressed by the court, only makes its decisions more suspect to more people.”
About 7 in 10 Americans trusted the U.S. Supreme Court when, in 1997, Justice Clarence Thomas disclosed receiving a private jet trip from Harlan Crow.
Mr. Crow hasn’t appeared in any of Justice Thomas’ disclosures since then, but the trips and gifts never stopped, according to an explosive ProPublica investigation published last week.
Chronicling decades of lavish presents and vacations bestowed on Justice Thomas and his wife by the Crow family, the ProPublica story has dealt a major blow to the high court’s integrity. And it comes at a time when, unlike 1997, fewer than half of Americans trust the court.
Why We Wrote This
Why does the highest court in the United States have the lowest ethical standards? That question has come to the fore after news that a GOP megadonor has been treating a Supreme Court justice to opulent vacations and loans of a private jet.
That trust has been declining for years as the court has reshaped American law in significant ways, and often in a direction further to the right than a majority of Americans. Notable examples include expanding the interpretation of the Second Amendment, eroding the Voting Rights Act, and overturning Roe v. Wade. Public distrust and anger have typically focused on specific rulings, however. Now, attention is turning to the court’s overall ethics and transparency – or lack thereof.
Supreme Court justices hold lifetime appointments, but unlike members of other federal branches – and federal judges in lower courts – they mostly police themselves on ethical and financial issues. Once described by James Madison as the “least dangerous branch” of federal government, the court is now both the most powerful, some experts say, and the least transparent and accountable.
“This is not just a gift here or a gift there,” says Michael Waldman, president of the Brennan Center for Justice. “A right-wing billionaire has been subsidizing the lifestyle, secretly, of Justice Thomas for two decades.”
“The Supreme Court faces a potential crisis of confidence,” he adds. “This kind of scandal, unaddressed by the court, only makes its decisions more suspect to more people.”
The Abe Fortas question
Supreme Court justices are only required to make one financial disclosure each year. They aren’t subject to the code of conduct for federal judges mandating that they avoid “all impropriety and appearances of impropriety.” Recusal from a case where they might hold a conflict of interest is left entirely to their discretion.
In this context, Justice Thomas’ behavior “is very disappointing,” says Kermit Roosevelt, a professor at the University of Pennsylvania Carey Law School.
“But it’s indicative of a larger problem,” he adds. The Justices “are just not subject to any enforceable ethics guidelines, and they act like it.”
History is littered with stories of justices making ethically questionable trips or receiving ethically questionable gifts. Most notably, Justice Abe Fortas resigned in 1969 after a Justice Department investigation found he had accepted lucrative gifts from wealthy friends.
But compared to past controversies, the ProPublica revelations are “definitely worse, by several degrees,” says Gabe Roth, executive director of Fix The Court, a nonprofit, nonpartisan organization that advocates for transparency and accountability in the federal judiciary.
One 2019 vacation in Indonesia that Mr. Crow subsidized for the justice and his wife, for example, would have cost over $500,000, ProPublica reported. An associate justice of the Supreme Court has an annual salary of just over $285,000.
There are exceptions to the justices’ financial disclosure requirements. Gifts of “food, lodging, or entertainment received as personal hospitality” don’t have to be disclosed, according to the Ethics in Government Act. Justice Thomas and Mr. Crow nodded to the exceptions in statements last week.
“Early in my tenure at the court, I … was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable,” said Justice Thomas in a statement the day after ProPublica published its story.
In a statement to ProPublica, Mr. Crow said they treated Justice Thomas and his wife “no different” from their other “dear friends,” adding that they’ve “never asked about a pending or lower court case, and Justice Thomas has never discussed one.”
Innocent, if opulent, holidays with friends or not, the relationship has drawn attention to the almost complete absence of ethical scrutiny enjoyed by the nine most powerful jurists in America. Members of Congress, for example, need to disclose most trips they make within a month, according to ethics experts. They’re prohibited from accepting gifts worth over $50.
“The Supreme Court is operating with lower ethical standards than any other federal government institution,” says Virginia Canter, chief ethics counsel at the Center for Responsibility and Ethics in Washington.
“At the same time, there’s no question they’re absolutely one of the most important institutions in our government,” she adds.
Evelyn Hockstein/Reuters/File
The federal judiciary’s policymaking body updated reporting requirements for Supreme Court justices earlier this year to include stays at commercial properties – such as corporate hunting lodges and ski resorts – and travel by private jet.
And transportation, such as private jet and yacht travel, wasn’t exempted even before the new guidelines, ethics experts say. Those are still much softer than officials in other federal branches of government. And while in the past there may have been a desire to treat justices differently from politicians in this respect, that desire is beginning to fade.
Like many in the legal profession, “I was raised to hold the court in the highest esteem … and thought that they held themselves to the highest standards,” says Ms. Canter.
“Maybe we were naive in thinking that,” she adds.
Can court’s legitimacy survive the status quo?
Not everyone agrees with this assessment. Indeed, the response to the Thomas scandal has underscored the partisan cloud that has surrounded the court.
Sen. John Cornyn, a Texas Republican and member of the Senate Judiciary Committee, wrote a tweet suggesting the ProPublica story broke because “the Left is furious it lost control of the Supreme Court.”
Democrats on the Senate Judiciary Committee, meanwhile, wrote to Chief Justice John Roberts on Monday urging him to investigate Justice Thomas’ conduct and “take all needed action to prevent further misconduct.” If the court doesn’t resolve the issue of its ethical standards on its own, they added, “the Committee will consider legislation to resolve it.”
The high court has a track record of resisting calls for increased accountability and transparency.
The late Justice Ruth Bader Ginsburg described a 2006 Senate proposal to create a judiciary inspector general’s office as “a really scary idea” akin to Soviet surveillance. In 2012, the same committee urged the justices to abide by the Judicial Conferences Code of Conduct that governs lower court judges. Chief Justice Roberts replied, “the Court has had no reason to” make that change. In 2018, the chief justice helped shut down a bipartisan judicial reform bill in Congress.
But the court has bowed to outside pressure in the past, as when Mr. Fortas resigned in 1969.
And Chief Justice Roberts does also have a track record of defending the judiciary’s institutional integrity, notes Mr. Waldman, author of the upcoming book “The Supermajority: How the Supreme Court Divided America.”
“Right now the status quo for the Supreme Court is collapsing faith and a catastrophic loss of legitimacy,” he adds. The chief justice’s response to this scandal “is as important as any ruling he’s voted on.”
Justice Thomas is unlikely to resign, and the Republican-controlled House is unlikely to impeach him.
It’s worth noting that, as perhaps the court’s most conservative member this century, it’s unlikely that the justice’s opinions were influenced to any great degree by Mr. Crow’s gifts, argues Professor Roosevelt, from the University of Pennsylvania.
But the effect of these gifts “may be to seal him off [from other] views,” he adds. “The ideological echo chamber you’re in affects your views.”
And all that said, even if the justices’ activities outside the high court aren’t influencing their behavior on the court, it’s becoming increasingly hard to argue that the most powerful court in the country should also have the weakest ethical requirements.
“People [are] waking up to the fact that there is no reason the justices have been exempt from basic accountability measures,” says Fix The Court’s Mr. Roth.