Notice And Comment: The SCOTUS Ethics 'Scandals'
Are the justices being unfairly judged?
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With the new Term of the U.S. Supreme Court starting on Monday, now is a good time to talk SCOTUS—including the ethics controversies that have dogged the Court throughout 2023. Do the justices have an ethics problem? Is it time for the Court to adopt a formal code of ethics?
Much of the commentary on these issues has been simple, arguably simplistic. It could be summarized as follows: the justices have serious ethics issues, Justice Thomas in particular should be impeached, and it’s high time for the Court to adopt a robust ethics code. Wash, rinse, repeat.
In a piece we just wrote for The Atlantic, my husband Zach and I advance some points about SCOTUS ethics that we believe are more nuanced—but perhaps controversial. Here’s a summary, although we urge you to read the complete piece (which you can do via the “gift links” in this paragraph, even if you’re not an Atlantic subscriber—I’m allowed to “unlock” a certain number of articles each month):
“The contemporary ethical standards that many Americans want to see the Supreme Court adhere to are exactly that—contemporary. Throughout the Court’s long history, justices have had conflicts of interest that we would find unacceptable today. And in the past, people didn’t seem to mind quite so much.”
After providing examples of SCOTUS “scandals” from decades past that generated mild public response compared to the intense anger of 2023, we suggest that “the question is not why today’s Court has so many potential conflicts and controversies…. The question is why they have generated so much attention and outrage compared with decades past.”
Our theory: the public’s angry reaction to reports of justices hobnobbing with the rich and powerful reflects the intense populism of 2023 (combined, of course, with a hyper-politicized media, including social media). The American people have gone from respecting and admiring elites to being deeply skeptical of them. Maybe this anti-elitism is a good thing; maybe it’s not. But recognizing its role in shaping public opinion toward the Court has implications for the current ethics controversies, plus the path to potential reform at One First Street.
“First, although greater scrutiny of the justices is salutary, blaming them for conduct based on standards developed after the actions at issue may be counterproductive. Hyperbolic condemnation of the justices, including calls for impeachment, has the potential to backfire. It makes the justices more defensive… and less likely to voluntarily adopt an ethics code.” And voluntary adoption by the justices is still the most likely path to an ethics code at SCOTUS, for better or worse.
“Second, as history has made clear, as long as the justices are real people underneath their robes, they will have potential conflicts of interest. The justices are human (and Americans want them that way—research shows that Americans trust human judges more than artificial-intelligence judges)…. Given this, strengthening disclosure requirements—and imposing real consequences for violations, such as serious financial penalties—may be more productive than trying to police the friendships of the justices or the gifts they can receive. An ethics regime that gives the justices broad leeway in their and their spouse’s outside relationships, tied to greater disclosure of those relationships, could be a reasonable compromise acceptable to both Congress and the Court.”
So, readers, what are we missing? Are we letting the justices off too easy? What do you think about ethics at the Supreme Court?
If there should an ethics code, what should it consist of? Should the justices simply follow the Code of Conduct for U.S. Judges, which governs lower-court judges, or should the Court’s code be different? If we beef up disclosure at SCOTUS, what should the new requirements look like?
Please share your views in the comments to this Notice and Comment (N&C) post. Consistent with N&C standard practice, comments are open to all, not just paid subscribers. Thanks!
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I'll kick things off with this point (which I kept out of the main post because I don't want these discussion prompts to be too long).
One reader of our article questioned the wisdom of extreme disclosure. For example, what if the justices had to disclose everyone they meet with, ever (sort of like the White House visitor log)? That could be a deterrent to, for example, the kind of "across the aisle" relationships and friendships that we want to encourage (because justices might not want to be known as hobnobbing with the "enemy"). It might also deter people from judicial service. (Yes, I know some high-powered lawyers who coulda been SCOTUS contenders but decided, on balance, that that wasn't something they wanted to shoot for, given the present-day sacrifices required for a very uncertain future benefit.)
This is a fair point, and I don't think Zach and I are advocating for so-called "radical transparency." The justices are entitled to some amount of a private life; they didn't sign up for The Truman Show. But I think we can still improve disclosure while not intruding unfairly into their affairs. For example, as Gabe Roth of Fix the Court raised with me when I interviewed him for my podcast, we could have a requirement that the justices disclose when their spouse receives more than $100,000 in income from a single source—e.g., a key client for a law firm, a big donor to Ginni Thomas's Liberty Central, etc.
I welcome other suggestions for how to beef up disclosure while still respecting some privacy for the justices.
The number one rule should be that Justices should not accept any trip, honoraria, etc. that allows the Justice to live a lifestyle above their paygrade. They certainly should not accept payments for real estate that their family-members live in, or academic "scholarships" for members of their families. Similarly, they should not take "loans" from wealthy "friends" to finance ultra-luxury mobile homes (or any home).
Such "gifts" give the appearance (and perhaps create the reality) that Justices are bought & paid for by the moneyed elite. Even if a Justice would have voted the exact same way without the "gifts", it also creates an incentive structure for aspiring judges and Justices to take the bench knowing that their material needs will be underwritten by wealthy patrons.
When my wife was an executive at a major retailer, there was a code of conduct that required her to refuse any gift worth more than $25. We returned dozens of baby gifts. It is crazy that Macy's has a more stringent ethical code than SCOTUS.