I’ve been around the block a few times in my nearly 66 years, so I’m not easily shocked. Even so, I could barely contain myself reading the multiple disclosures about the ethical lapses of U.S. Supreme Court Justice Clarence Thomas.
The now-well-publicized ethical breaches, as dreadful as they were, paled in comparison to my disbelief when I learned that the highest court in the land has no formal code of ethics for its nine justices. This despite the fact that practically every other court in America has such a code for its judges.
So, too, do most other public-interest professions such as journalism, public relations, lawyering, medicine, accounting, social work, teaching, and psychology. For all its other failings, the houses of Congress, both of which have actual ethics committees, have detailed codes of “official conduct.”
These ethics panels can field complaints about members and, if necessary, recommend sanctions. The most recent notable complaint was filed by House Democrats against George Santos, the Long Island Republican who last year lied his way into a House seat by inventing his entire biography out of whole cloth.
Most states, including ours, have ethics commissions whose job it is to field complaints about public officials, investigate them and invoke sanctions if warranted. I especially enjoy the Massachusetts State Ethics Commission, whose website is well stocked with head-shaking press releases on local officials who brazenly violate conflict of interest laws by steering contracts or hiring a close relative (yes, I’m an ethics nerd). Connecticut’s Office of State Ethics has a list of public releases, too, and it’s equally maddening but far less entertaining.
As I wrote in my Substack column this week, one can employ a variety of rationales for skirting those rules. But they’re there for good reason. The public needs to know that officials are acting in the public interest and not to enrich themselves or otherwise act to benefit those officials or their families and friends.
That same holds true for judges, which is why almost all of them except justices in the highest court in the nation have codes governing ethical conduct. The federal judiciary has a Code of Conduct that includes an ethical canon that applies “to federal judges and provides guidance on their performance of official duties and engagement in a variety of outside activities.” A separate ethics code governs other employees of the federal judiciary.
Connecticut has a Code of Judicial Conduct for all its judges that emphasizes, among other things, that “An independent and honorable judiciary is indispensable to justice in our society.” For serious ethical breaches, the General Assembly can move to impeach and remove judges, though the state constitution does not specify a burden of proof. According to the Office of Legislative Research, it’s only happened once.
In 1984, the late James Kinsella, an elected probate judge, was impeached by the Connecticut House of Representatives for mishandling the estate of West Hartford heiress Ethel A. Donaghue by dismissing a conservator, appointing two friends to gain control of the estate, and later refusing to cooperate with official investigations into the matter. Kinsella was acquitted in the Senate but later agreed to resign.
But there is an outsized hole in the matter of ethical requirements for justices of the Supreme Court of the United States (SCOTUS). Congress does have the power to impeach justices but it has only happened once, in 1805 to Justice Samuel Chase, who angered President Thomas Jefferson and others over his staunchly Federalist philosophy. Like Kinsella, Chase was acquitted in the Senate.
Why the lack of a code of conduct? As explained in the Poynter Institute’s Politifact, the court is already subject to some federal laws governing gift disclosure, but has no other formal ethics guidelines, as the legislative and executive branches and the lower federal courts do.
Poynter adds that there have been calls from lawmakers and judicial reform advocates for Congress to create and pass a code for the high court, or at least to mandate that the SCOTUS formally adopt the same code already in use by the lower courts. Many legal scholars, however, have suggested that the legislative branch imposing a code on the judicial branch might be unconstitutional and difficult to enforce.
For the SCOTUS to remain an outlier in not having a code sends precisely the wrong message to the public to which it is ultimately accountable. Either Supreme Court Justice John Roberts, who has so far resisted calls for a code, thinks the ethical breaches currently happening in his court are not serious, or he expects us to believe that his justices are such honorable people and possess such Olympian detachment that their integrity could not possibly be called into question.
Justice Thomas’ transgressions at first seemed like a one-off, but then they started to pile up. The most recent revelations are numerous but they started with the disclosure that his wife, Ginni, was a conspiracy theorist and ardent election denier who communicated regularly with Trump administration officials and also promoted and attended the Stop The Steal rally preceding the attack on the US Capitol on Jan. 6, 2021. Her husband refused to recuse himself from involvement in cases involving the insurrection.
Last month, ProPublica started publishing a series of reports documenting expensive gifts and purchases (exotic vacations, private school tuition payments, real estate purchases) from major Republican donor Harlan Crow. Thomas voted favorably on cases before him involving groups connected to Crow.
The Washington Post also reported that a prominent judicial activist, Leonard Leo, paid tens of thousands of dollars in consulting fees in 2012 to Ginni Thomas, specifying that her name be left off of the billing paperwork. That same year the nonprofit Leo advises, the Judicial Education Project, filed a brief to the SCOTUS in a landmark voting rights case. Thomas was part of the 5-to-4 majority ruling in favor of the position taken by JEP. To me, Leo’s stated omission of Ginni Thomas’ name from the billing records shows consciousness of guilt.
Despite the court’s reporting requirements, Thomas failed to disclose any of the gifts. Richard Painter, a former chief White House ethics lawyer for President George W. Bush, told ProPublica that when he was at the White House, an official who had taken what Thomas has taken would have been fired: “This amount of undisclosed gifts? You’d want to get them out of the government.” And it goes without saying that any member of Congress who did what Thomas did would likely face some sort of consequences.
Rising in defense of Thomas, some conservatives have pointed to other SCOTUS justices who have had ethical issues such as Sonia Sotomayor and Neil Gorsuch, both of whom collected seven figures in advances and promotion for their new books. As required, both disclosed the transactions, but neither of them recused themselves from cases involving their publisher, Penguin Random House, that later came before the court.
But that’s a false equivalency. The difference between their case and Thomas’ is that, as required, Sotomayor and Gorsuch reported the arrangements and I’m not aware of any other ethical violations they may have committed. Thomas, on the other hand, committed a series of ethical breaches and failed to disclose any of them, making it appear as if he had something to hide.
No, the Thomas case has convinced me that, at the very least, the highest court in the land needs to police itself with a strong code of ethics. At the most, Congress should consider intervening, though such an action would raise constitutional questions.
But don’t hold your breath. At a hearing earlier this month, according to Roll Call, Democratic members of the Senate Judiciary Committee pressed for legislation that would impose an ethics code on the SCOTUS if the court itself refused to, but witnesses were split as to whether Congress actually has the power to do so.