The Supreme Court may be beginning its summer recess, but the furor over the justices’ ethical lapses is still gathering steam. We now know that both Justices Clarence Thomas and Samuel Alito have gone on lavish vacations with court litigants without disclosing the trips or recusing themselves from their benefactors’ cases. Thomas has also accepted extravagant gifts. Congress should pass new ethics rules for the justices before they reconvene on the first Monday of October.
Though the developing reform effort appears fairly modest — Senate Judiciary Chairman Dick Durbin said last week he’s focused on “a code of ethics, increased disclosure requirements and clear rules dictating when justices must recuse themselves from cases” — the action to date is single-party. Proposals to require greater disclosure of the justices’ free trips or to create an inspector general for the judiciary to oversee ethics inquiries once had bipartisan support, but Republicans appear to have backed out.
What might be worse: Some court-watchers are insisting Thomas and Alito did nothing wrong in accepting their largesse. That’s a preposterous position considering the legal standard for bias, as summarized three decades ago by Justice John Paul Stevens: “The relevant inquiry […] is not whether or not the judge was actually biased but whether he or she appeared biased.” Put it another way, as the Code of Conduct for US Judges does: “An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances […], would conclude that the judge’s honesty, integrity, impartiality, temperament or fitness to serve as a judge is impaired.”
Thomas accepted gifts in the late 1990s and early 2000s from Harlan Crow valued in the tens of thousands of dollars, including private airplane flights and a Frederick Douglass-owned Bible. Crow Holdings was involved in a 2004 high court petition. Might a reasonable person impute bias? Yes, so recusal was required.
Alito accepted a free fishing vacation in a remote Alaskan village in 2008, which included a ride on Paul Singer’s private plane. Singer’s investment group, NML Capital, then appeared in court petitions in each of the subsequent six years. Might a reasonable person impute a bias? Yes, so recusal was required.
Again, you don’t need to verify that X (a gift or free trip) led to Y (a specific outcome in a case). If the X is fishy, the specifics of the Y don’t matter much. And these days, SCOTUS smells like weeks-old salmon.
Thomas’s and Alito’s defenders have said their participation was unimportant because the court ultimately declined to hear the Crow real estate petition and the NML Capital case was decided 7-1. Their votes were not determinative. But that misses the point.
Ethics rules exist not so that public officials can come as close as possible to crossing the line and then generate a debate on the line’s contours. They’re not policies from which officials can cherry-pick certain phrases that they believe to be loopholes. They’re there to help navigate difficult questions with an eye toward maintaining public confidence. It’s clear the Supreme Court has strayed from that vision and needs help getting back on track.
It’s worth noting that although Thomas’s and Alito’s lapses are the most egregious, every justice currently on the court could be accused of some ethical failure.
Chief Justice John Roberts has failed to recuse himself in a handful of petitions despite having a financial stake in a party. Justices Sonia Sotomayor and Neil Gorsuch have failed to recuse themselves in petitions in which their book publisher was a party, despite receiving huge sums of money for their writings. Justice Elena Kagan never recused herself in any major Obamacare case, though her office crafted the law’s legal defense when she was US solicitor general. Justice Brett Kavanaugh met with the head of an anti-LGBT group just after the group filed amicus briefs in two cases. Justice Amy Coney Barrett said the justices were not “a bunch of partisan hacks” at the University of Louisville’s (Mitch) McConnell Center — standing four feet from Senator McConnell, who was majority leader when she was confirmed. Justice Ketanji Brown Jackson omitted multiple free, reportable trips from her disclosures and doesn’t appear to have filed amendments.
That’s just a partial list.
Here’s my solution, and it’s not the uber-nonspecific “ethics code.” Instead, Congress should institute a hard-and-fast cooling off period for the justices.
If you’re a justice who, in the last 10 years, has received income, including book advances and royalties, from an individual, corporation, security or government office, and that entity finds itself before the court, recusal should be required. The same logic should extend to physical gifts, gifts of transportation, and food or lodging with a value of over $50. Accept a vacation from billionaire? No ruling on the billionaire’s cases for 10 years.
Cooling-off periods already exist in the other two branches, so bringing the high court under a similar ethical framework makes sense. With the justices apparently and shamefully having recused themselves from fixing their institution, lawmakers should make sure they get this done before the nine return from wherever their travels take them this summer.
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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Gabe Roth is executive director of the nonprofit group Fix the Court.
