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The U.S. Supreme Court doesn’t seem to have much interest in listening to calls from the legislative branch to improve its weak, if nonexistent, ethics requirements amid a flurry of concerning reports about members of the nation’s highest court. Perhaps they’ll listen to one of their former judicial colleagues.
Retired federal judge Michael Luttig is a heavy hitter in conservative legal circles. His words about the court’s responsibility to safeguard the trust of the American people should weigh heavily on his former colleagues.
There have been recent reports about Justice Clarence Thomas not fully disclosing trips paid for by a friend and wealthy Republican donor, and a real estate deal with that same donor. Justice Neil Gorsuch also reportedly failed to fully disclose a real estate deal involving a law firm executive whose firm had business before the court. Just this week, additional reporting indicates that the same wealthy donor, Harlan Crow, paid private school tuition for one of Thomas’ family members.
There’s been plenty of criticism from Democratic politicians recently, sure. But with Luttig, this is one of Thomas’ friends talking. The Roberts court should hear and act on what he is saying. Because the truth is, justices conservative and liberal alike have availed themselves of the weak ethics safeguards over the years — including by accepting and not disclosing travel and other “personal hospitality.” This lack of accountability is damaging to the court as an institution and must stop.
“It is the Supreme Court’s duty to acquit itself in the discharge of its judicial responsibilities so as to continually assure and reassure the American people that its judgments are deserving of respect,” Luttig said in written testimony provided to Congress recently. “It is also the duty of each and every man and woman upon whom is conferred the privilege to serve on the Supreme Court to conduct themselves in their non-judicial conduct and activities in such a manner that they are individually deserving of respect — indeed, beyond reproach, not only in fact, but also in appearance. This, at all times and places, in both public and in private.”
The recent reporting about current justices is just the most recent interaction of a longtime problem: The Supreme Court doesn’t consider itself bound by the same rules other federal judges follow. All nine current justices said as much in a recent statement.
“In 1991, Members of the Court voluntarily adopted a resolution to follow the substance of the Judicial Conference Regulations,” the justices wrote in their recent statement on ethics principles and practices. “Since then Justices have followed the financial disclosure requirements and limitations on gifts, outside earned income, outside employment, and honoraria.”
You don’t need an Ivy League law degree to recognize that “follow the substance of the Judicial Conference Regulations” is an eloquent way of saying something doesn’t strictly apply to you, at least if you don’t want it to. They can’t really be considered regulations if the supposedly regulated entity doesn’t recognize their authority. This, and other parts of this unanimous court statement, amounts to a well-worded copout.
This shouldn’t be complicated. The Supreme Court should develop and follow strict ethics rules for its members. And if it remains unwilling to do so, Congress should regrettably (but constitutionally) step in.
“The Justices, like other federal judges, consult a wide variety of authorities to address specific ethical issues,” the nine justices continued in their underwhelming statement. “They may turn to judicial opinions, treatises, scholarly articles, disciplinary decisions, and the historical practice of the Court and the federal judiciary. They may also seek advice from the Court’s Legal Office and from their colleagues.”
What if they simply had a specific set of defined rules that they had to follow, say like the rules that all other federal judges are supposed to adhere to? And actually followed them, not just “follow the substance of.” Then they could leave out all the treatises, articles and advice. Judges spend a lot of time on interpretation, we get it, but there should be little interpretation needed when it comes to the ethical standards of our country’s highest officials.
“The continuing obligation of the Supreme Court to ensure faith, respect, and confidence in the Court assumes a continuing need to reexamine itself as faith, respect, and public confidence in the Court ebbs and flows, which public confidence in the Court has historically done and can be expected to do in the future,” Luttig wrote in his measured but powerful testimony. “This continuing obligation to assess itself — to look in the mirror at itself if you will — exists irrespective of whether the ebbs and the flows are believed to be justified by the Court.”
Our translation for Justice John Roberts and each of his colleagues on the Supreme Court: Just because you don’t want to impose high ethical standards on yourselves, doesn’t mean you shouldn’t. The trust of the American people is more important than your ability to accept a trip.
