Opinion | The Highest Court Has the Government’s Lowest Ethical Standards

At least one member of the Supreme Court told Justice Clarence Thomas that there was no problem accepting privately paid luxury trips and other lavish gifts from “close personal friends” without disclosing them, according to a statement issued earlier this month by Justice Thomas. Whoever it was — names were not disclosed — gave him stunningly tone-deaf advice, given the uproar that followed when ProPublica reported that the justice had for more than 20 years accepted lavish gifts and trips from a billionaire conservative friend.

But Justice Thomas’s indulgence is just the latest and most egregious example of a weakness demonstrated by virtually every member of the court for decades, those nominated by Republican and Democratic presidents alike: a willingness to accept freebies, gifts and junkets — both costly and modest — from people and groups who find it useful to be close to nine of the most powerful people in the United States.

While some of these gifts have been disclosed (though not always in much detail), their preponderance — despite years of calls for restraint and self-policing by the court — show how vital it is that the Supreme Court adhere to a clear ethics code that would limit gifts and mandate full disclosure of all outside income to the justices.

The long list of comforts provided to Justice Thomas and his wife, Ginni, was shocking mainly in its rococo extravagance. Nine days of island cruising in Indonesia on a fully staffed superyacht. Regular flights on a private jet. Summers at a private resort in the Adirondacks, and every dollar of it paid by Harlan Crow, a real estate baron from Texas who has spent millions for decades to elect Republicans and on efforts to push the judiciary to the right.

None of it was on the justice’s annual financial disclosure form. Neither was a payment of $133,363 that Mr. Crow made to Mr. Thomas and his family in 2014 in exchange for three properties in Savannah, Ga., including the house where the justice’s mother has lived, ProPublica reported on Thursday. Mr. Crow said he bought the real estate in order to create a Clarence Thomas museum one day. Experts said the failure to disclose the sale or the free trips was a clear violation of the Ethics in Government Act of 1978, which was intended to apply to all government employees and requires disclosure of real estate transactions and most gifts. Each branch of government was given considerable leeway in determining how it would comply with the law, and court critics have long said that the Supreme Court’s compliance was the weakest of any federal government body.

Failing to disclose gifts and transactions is only one part of the problem, though. The gifts that many justices have disclosed in full or in part over the years are often just as damaging to the court’s reputation as the ones they did not fully disclose. Justice Antonin Scalia took at least 258 subsidized trips while on the court, often to distant destinations, all paid for by private donors, some of which were at least partially disclosed. (He often tacked hunting trips onto trips to give speeches, but only disclosed the speeches.) He died in 2016 while staying in a luxurious Texas hunting lodge owned by John Poindexter, a wealthy businessman whose company had legal matters before the court; that trip was never officially disclosed. Justice Stephen Breyer took at least 225 subsidized trips from 2004 to 2018, according to data compiled by the Center for Responsive Politics, including trips to Europe, Japan, India and Hawaii. One was a trip to Nantucket paid for by David Rubenstein, a private equity mogul.

Justice Ruth Bader Ginsburg got a private tour of Israel in 2018 that was paid for by an Israeli billionaire, Morris Kahn, who has had business before the court. Many other justices have taken questionable trips over the years, including weeklong trips paid for by big universities and law schools, some of which were not fully disclosed on their annual reports.

The problem with these kinds of favors and gifts — regardless of whether they are disclosed — is that they badly damage the court’s reputation as the ultimate fair arbiter of the law. The court has already sunk in public esteem because of partisanship, particularly as justices nominated by Republicans have set aside precedents, public sentiment and impartiality to advance identifiably right-wing agendas. But when the court’s members accept benefits from the nation’s moneyed elite, no matter their politics, it sends a signal that ordinary Americans without those resources are at a disadvantage.

In some cases, it is not merely a signal. A ticket to the annual black-tie dinner held by the Supreme Court Historical Society costs at least $5,000 and includes the chance to mingle with the justices. The Times reported last year that at least $6.4 million of the money raised by the society came from corporations, special interest groups or lawyers with business before the court.

Organizers of these events have always vociferously denied that any influence peddling is taking place during casual social conversation. Similarly, Mr. Crow told ProPublica that the hospitality he provided was no different from what he has offered to other “dear friends” over the years, that the Thomases had never asked for it, and that no court business was ever discussed. Justice Thomas made a similar point in his statement.

No matter what was discussed, the justices should avoid any appearance of trading access for gifts or becoming too close to people who want to promote their own interests. Mr. Crow’s money, for example, was used to arrange meetings at his resort between Justice Thomas and Leonard Leo, a leader of the Federalist Society, the principal organization dedicated to placing conservative jurists up and down the federal bench. Executives of corporations including Verizon and PricewaterhouseCoopers were also present at the resort at the same time as the justice, ProPublica reported.

No member of Congress or the executive branch is permitted to accept a single free cruise or flight without disclosing it. Lower-court federal judges are subject to gift limits and full disclosure rules as set out in the Judicial Conference regulations on gifts, but Chief Justice John Roberts has repeatedly said the conference’s rules do not apply to the Supreme Court. The Supreme Court remains “the least accountable part of our government,” as the watchdog organization Fix the Court has been saying for years.

In March, a few weeks before the news broke of Justice Thomas’s trips, the court agreed to be bound by new accounting rules that would require the disclosure of the kind of hospitality the justice accepted from Mr. Crow, as Justice Thomas acknowledged in his statement. Had the rules been in effect earlier, he would have had to disclose the trips he took.

The new rules, which apply to all federal judges, came after pressure by Democratic lawmakers, particularly Senator Sheldon Whitehouse of Rhode Island, to expand the reporting requirements for “personal hospitality” accepted by judges, particularly after the news of the many hunting trips accepted by Justice Scalia came out after his death.

But the new rules are still not very strong. As Gabe Roth, executive director of Fix the Court, points out, judges are still not required to disclose the dollar amounts of the trips, and can wait up to a year to report them. Members of Congress, by contrast, must report all such gift trips within a month, and disclose their value.

A better solution is a bill introduced by Senator Whitehouse, chairman of the Senate Judiciary courts subcommittee, which would require the court to adopt a code of conduct with disclosure rules that are at least as rigorous as those imposed on members of Congress. Justices would also have to establish clear rules about when they recuse themselves from cases and issue written statements about such recusals. Currently, they usually recuse themselves without explaining why and often do not recuse themselves when they should, as Justice Elena Kagan failed to do in a 2021 case in which she had played an earlier role as solicitor general. (After an outside observer noticed the error, the court issued a statement saying the error was inadvertent.)

The bill, which now has 16 Senate co-sponsors, is a good start, but simply disclosing gifts and trips is not enough. Justices have to stop accepting expensive gifts in the first place.

The Supreme Court could eliminate any impression that it can be seduced by oligarchical wealth by adopting the kinds of gift limits that apply to members of Congress and other federal employees. Senators cannot accept gifts (including hospitality) worth more than $50, or more than $100 from a single source in a year. They need advance permission from an ethics committee before accepting gifts from personal friends worth more than $250. Free lodging can be accepted in someone’s personal residence, if the owner is not a lobbyist. House rules are similar.

An ethics office at the Supreme Court, similar to ethics committees in the House and the Senate, should be established to oversee and enforce these kinds of decisions by the justices and their employees, with public, transparent record-keeping.

Ethics rules have nothing to do with judicial partisanship. A strong set of ethical standards would apply to anyone who serves on the court, and would endure even as the ideological character of the court changes, as it may one day. The court should long ago have adopted standards of its own, but if it continues to neglect its responsibility to devise and abide by enforceable rules, Congress will have little choice but to impose its own.

In the meantime, as a sign that they take ethical lapses seriously, members of Congress need to investigate the news about Justice Thomas’s long financial relationship with Mr. Crow to determine the precise nature of the gifts and whether their secrecy violated federal ethics law. If Chief Justice Roberts doesn’t conduct a court investigation of the matter, the Senate Judiciary Committee should call on both Justice Thomas and Mr. Crow to testify. It will take effort and resolve from all branches of government to repair the tarnished reputation of the nation’s highest court, but the stakes are far too high to continue ignoring it.

The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: [email protected].

Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.

Source: Read Full Article