Writer: Lily Engel
Editor: Violet Scharf
Fall 2023
There has been a recent surplus of news articles investigating the behavior of Supreme Court justices. While a few have been singled out, the truth is that a lot of the justices do not follow the code of conduct that lower court judges do. Not only have fully funded trips and gifts not been disclosed, but they have used their office to market for personal gain. Yet, they have not recused themselves from cases that interfere with these amenities that have not been properly disclosed. These breaches of ethics would not be allowed in any other court.
To start, lower court judges are all held to the same standard of a “Code of Conduct,” which has five canons that provide judges guidance on their behavior and performance while in office (Ballotpedia).
1. “A judge should maintain and enforce high standards of conduct to preserve the independence of the judiciary”
2. “A judge should avoid impropriety and the appearance of impropriety in all activities"
3. “Discusses a judge's duty to perform their job in a fair impartial and diligent manner”
4. “Permits a judge to engage in extrajudicial activities so long as they are consistent with the obligations of the judicial office but, not those that detract from the dignity of the office, interfere with the performance of official office, interfere with the performance of official duties, reflect adversely on one's impartiality, lead to frequent disqualification, or violate certain limitations outlined in the canon"
5. Prohibits a judge from engaging in political activity, such as making speeches for a political organization, not acting as a leader, or holding any office in a political organization
Up until the late twentieth century, these were merely guidelines, then they were amended so that judges could be held accountable if they broke these rules. The Supreme Court justices are the only judges in the country who are not held accountable by this Code of Conduct. When rules and guidelines were created for lower courts, it was thought that the Supreme Court Justices were so honorable, that they would not need these guidelines, and the country would not need to enforce anything. Unfortunately, that is not how it played out. There is now an entire website focusing on dual justice and corruption they have been accused of: https://fixthecourt.com/
While SCOTUS is not subject to the Code of Conduct, they do have to follow the statute that requires all federal judges to recuse themselves from any judicial proceedings in which their impartiality might reasonably be questioned including when their spouse, member of household, or immediate family has “any other interests that could be substantially affected by the outcome of the proceeding” (Ballotpedia). This is especially important because the Supreme Court decides precedents and laws for the entire country. Not one court, not one state, but everyone in America. If these Justices have a conflict of interest in a case and do not recuse themselves, harm could be done to countless Americans.
One of the biggest scandals to become known this year revolved around Justice Clarence Thomas. His wife, Ginny, was heavily involved in the January 6th insurrection, and she had many vested interests in wanting to see then-President Donald Trump succeed in overturning the election. There were texts, calls, and speeches given by Ginny that all showed how strongly she wanted Trump to succeed in this illegal, partisan activity. As statute 433 states, a Justice must recuse themselves if their spouse has an interest that would change the decision's outcome. When the January 6 cases and Trump re-election cases came up to the Supreme Court, Thomas - despite his wife being involved - did not disclose what his wife had done and was doing and did not recuse himself. After this was revealed, Clarence underwent scrutiny that revealed he had taken many unreported gifts from Harlan Crow, a Dallas millionaire and GOP figure. Justices and judges alike are required to disclose gifts that are above $415. Crow not only flew Justice Clarence on his private jet for vacations, but he even paid around $100,000 for his mom's house. Well above the $415 disclosure law. This also violates the Code of Conduct canon 5, prohibiting a judge from engaging in political activity, as Harlan Crow is a huge GOP sponsor. Defenders of Clarence Thomas point to the “personal hospitality” exemption which explicitly states things such as food, lodging, and entertainment are hospitality, not gifts. Although this does not mean transportation, arguments have been made for or against transportation being included in this law. The main problem with the use of Harlan’s plane is that Thomas did not exclusively use it to go on vacations - including using it to fly to Dallas to swear in a lower court judge. Hospitality purely means for a non-business manner, which that instantly was not. As for the real estate deal between Crow and Thomas, law 5 U.S.C. Statute 13104(a)(5) clearly states that “any purchase, sale, or exchange during the preceding calendar year which exceeds $1,000 in real property…” must be reported (Roth). This was not, no matter how Thomas tries to spin it, it is a violation of federal law.
It is common knowledge among legal scholars that Supreme Court justices cannot use their office for personal gain (Cornell). It is simply against the law for any justice or judge. But Justice Sonia Sotomayor has recently been called out for earning more than $3.7 million on her books since taking office in 2009 (Associated Press). It is not the fact that she authored books and is selling them, but the fact that her aides - paid through taxpayer dollars - were promoting her works to places she would go give talks at. Libraries and colleges are always looking for a big guest speaker, and Sonia Sotomayor who exemplifies the American Dream - from poverty to the Supreme Court - is top of many lists. When she would go give talks at these prestigious places, her aides would “prod” institutions into buying her books, boosting her sales. Using her office (her aides) to sell more of her books for personal gain violates the laws in place against private gains from public office. Yet, there is no conceivable way to hold Supreme Court Justices accountable for this, since they are the highest court in the land.
Supreme Court Justices Clarence Thomas and Sonia Sotomayor are not the only justices to not report gifts, financial gains, or misuse of their office. Many examples go on and on, showing everyone that they need to be held accountable for their actions. This is why, over the summer of 2023, Democrats passed a new Senate Bill to help put up checks on the Supreme Court. The new bill would “mandate new supreme court code of conduct with a process for adjusting the policy modeled on lower courts ethic codes…” (Jalonik). This means they could require justices to provide more information about conflicts of interest, have impartial judges panels review recusal decisions, and seek transparency around gifts received. These new requirements are exactly what the court needs. They are not too strict; they are the ethical codes the justices were expected to follow before just being written into law. Plus, they will be held accountable through other judges who are held to the same standards as them, giving the American public more belief in their highest court.
Unsurprisingly, republicans voted in unity against the bill. Many opponents to writing up a Code of Conduct for the Supreme Court argue that while lower courts have substitutes for recused judges, the Supreme Court only has nine justices. When a Justice recuses, there is no replacement. Justice Scalia said a justice recusing “out of an excess of caution” would be “utterly disabling” to the Supreme Court, as we could end up with 4-4 decisions (Millhiser). While this argument is a concern, is it not more of a concern that the nine people the country holds as the most honest, law-abiding people are not actually what they appear to be?
Overall, this matter is of the highest concern in America right now. No matter your political party, this scandal has spared no one. A Supreme Court without an ethical code of conduct does not embody the goals and beliefs upon which our country was founded. The highest court in the land must only have people whose citizens can trust to make the right decisions, and not use the office for personal gain.
UPDATE:
On Monday, November 13, the Supreme Court announced its first formal code of ethics. This new code was influenced by outside pressure after many scandals such as the ones outlined above. Included in this code are statements that justices should not let outside relationships influence their decisions in the Court, as well as restrictions about speaking at events and accepting gifts. While these provisions are newly codified by the Supreme Court, these are the restrictions lower court judges have had to always abide by with one major difference – there is no way to enforce them. This makes the code of ethics a mere publicity stunt. Without punishment or real consequences for Justices, scandals will keep developing – putting our nation’s stability at risk.
References
“Codes and Canons of Judicial Conduct.” Ballotpedia, 2023,
Cornell. “5 CFR § 2635.702 - Use of Public Office for Private Gain.” Legal Information
Institute, Legal Information Institute, 2022, www.law.cornell.edu/cfr/text/5/2635.702.
Jalonick, Mary Clare. “Senate Committee Approves Legislation to Impose Stronger Ethics
Standards on Supreme Court Justices.” AP News, AP News, 20 July 2023, apnews.com/article/supreme-court-ethics-senate-clarence-thomas-3e34958536ce4fa464b6ff8cc1d71260.
Millhiser, Ian. “The Real Reason for the Supreme Court’s Corruption Crisis.” Vox, 25 Apr.
Press, Associated. “Supreme Court Justice Sotomayor’s Staff Prodded Colleges and
Libraries to Buy Her Books.” Maryland Daily Record, 12 July 2023, thedailyrecord.com/2023/07/12/supreme-court-justice-sotomayors-staff-prodded-colleges-and-libraries-to-buy-her-books/.
Roth, Gabe. “Thomas and Alito Disclosures out; Questions Remain.” Fix the Court, 31 Aug.
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