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.
David should speak for himself regarding radical transparency. Personally, I would support both monthly disclosures for expenses/payments received over a certain amount and that such disclosures be read from the bench by each justice.
"It might also deter people from judicial service."
If having to disclose the fact that a justice has gotten a mega thousand dollar vacation provided by a mega-wealthy guy (or gal) that is having mega-lucrative cases going to the court is going to dissuade people from wanting to be a justice, that is probably a good thing. We don't want folks who embrace this kind of corruption (can anyone say Thomas or Alito or Roberts or Kavanaugh) on the court -- we want honest people who will accept $200K/yr with additional thousands in perks and do the job. But that's definitely too much to ask of Republican appointees.
I would support radical transparency - if a (potential or current) jurist had to supply details of who they had met with and for how long (without, obviously, having to provide details of the discussions they had), it might indeed deter people from judicial service.
But don't we want people who are willing to give up some privacy (some, not all) and more importantly, are willing and able to explain why they met with "the enemy"?
If Justice Sotomayor meets with the Federalist Society for a paid event, that doesn't bother me - I think she's trustworthy and had good reason to do so. If Justice Roberts meets with members of a progressive organization and is paid a fee to do so, again, he has his reasons and they're probably good.
If Justice Thomas does anything, I'm kinda inclined to check his motives.
Sep 28, 2023·edited Sep 28, 2023Liked by David Lat
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.
One proposal I have heard: significantly raise the justices' salaries, but then, as you suggest, ban them from accepting all these "freebies." It strikes me as a reasonable approach.
We could also raise the justices' salaries and then sharply curtail not just their freebies, but also their outside income—e.g., book deals. Or if we still let them do book deals—there is arguably value to the justices speaking to the public—maybe they should not be allowed to get advances, only royalties. Royalties reflect the market value of a book's success, not a publisher paying out a huge advance to curry favor with the author. And of course the justices should have to recuse from cases involving their publishers.
It is equally crazy that a 4th year associate at an AmLaw 100 firm makes more ($293k) than any Justice on the Supreme Court (CJ makes $280k, Associate Justices make $263k).
I would raise the salaries for Supreme Court Justices to be $1M (Circuit Courts of Appeal, $750k, District Court, $500k), which still would be a tiny fraction of what AmLaw 100 equity partners make.
No honoraria, no book advances and no bulk sales of books. No paid junkets from (or attended by) any litigant for the past 10 years.
This would likely mean the end of things like the Patent Prom (a/k/a the Annual NYIPLA gala). While I think it benign, it is a slippery slope.
One of my former colleagues when we were AUSAs just left the District Court bench so that he could pay for college for his children. He is in his early 50s, and would have been a great judge for decades if he could have afforded to stay on.
my firm has brought in a couple of now-former federal judges recently, of a similar age range, who told us a similar story about why they left their dream job
If it is all about the money, why would one think that $1M/yr (or $10M/yr or $100M/yr) would make the justices less corrupt? It seems that it would just move them into a different social circle, but never in the rarified atmosphere that Crow or Musk, etc, are in. It would seem that for those that would be attracted because of the massive pay would never be satisfied with it and would in fact only be more inclined to seek out even more corrupt avenues.
The issue is not whether $1 million "will make the justices less corrupt". It is whether the best legal minds will step forward to become federal judges, given the enormous disparity in pay from private practice at an AmLaw100 firm. I know of many attorneys who refused opportunities to become federal judges because they could not manage their lives on the pay of a federal judge.
This is not hard: make the justices follow the code that applies to lower-court judges. The gift limit of $415 is more than generous—higher than the $100 limit for U.S. Senators (hi Senator Menendez!)—but would catch Harlan Crow-level largesse.
The justices are different from other judges in terms of their fame and power. I see no problem with subjecting them to HIGHER requirements. Also, there will be no shortage of great lawyers willing to serve on SCOTUS, no matter what the pay. (That is different from the lower courts, where judges are retiring in their prime to join firms.)
I think some folks have been misinterpreting our piece's discussion of Supreme Court history, then responding to a straw-person argument. I've made this point in response to a number of individual comments, but I'm going to post it as a freestanding comment as well to increase its visibility.
To be clear, we were definitely NOT endorsing misdeeds of the past. It was entirely wrong, for example, for Chief Justice Burger to be talking on the phone with President Nixon about pending and future cases. Rather, we were making a descriptive point—in the past, the American public didn't care so much about SCOTUS ethics—on our way to exploring WHY they didn't care so much
We then explained why we think it's GOOD that the American people care more about ethics today. And we stated explicitly in our Atlantic piece that the Court SHOULD have an ethics code.
I think the points made in your and your husband's article in The Atlantic are definitely well-taken. It put me in mind of my Federal Courts class in law school and our week-long review of Marbury v. Madison, where Professor Vladeck and the class spent a fair bit of time tracking, with some amusement, all the myriad roles that Chief Justice John Marshall occupied in the facts, and what lengths he went, in his own opinion, to keep his literal name out of it. Based on the lax recusal tradition started as far back as the very inception of the Supreme Court, then, I think the point that this outrage is primarily contemporary is well-taken. However, I think to stop the analysis at basically that "this is a result of a hyper-political and populist America" is pretty reductive and ignores the Supreme Court's own role in eroding their legitimacy in the eyes of the public.
The fact is that this populism and hyper-political environment has not evolved in isolation from the Supreme Court itself, and your article does not seem to discuss that with due attention. The Supreme Court has played a significant role in the decline of public trust in it as an institution aside from ethical controversies. They have invented legal doctrine and overturned long-settled precedent, Roe v. Wade looming large. They have defied Congressional mandate and extensive legislative study on a wide range of issues, the Voting Rights Act being just one of them. The leak of the Dobbs opinion further reveals the cracks in the institution itself, irrespective of their outward positioning. As does the justices' barely concealed disagreement about the solvency of the institutional legitimacy of the Court in the eyes of the American public. Furthermore, other actors in government have taken their own steps to politicize the Court beyond ever before. The stalling of AG Garland's nomination to the Supreme Court looms large in mind.
One cannot also discount where today's Supreme Court falls on the historical right-left spectrum. I think many would agree that, looking at the history of the Supreme Court, it has primarily been a conservative institution. The liberal Warren Court and the "long-held" rights that we often think of were more of an aberration in the history of the institution than today's Court. That being said, the contemporary memory of people goes back only so far, and we have several generations of Americans whose entire lives have been lived under a legal regime where they have had the rights that the Supreme Court now curtails.
So, while the hyper-politicization of the Court does play a role in the push for ethical standards, like your article posits, the push for ethical standards comes from a place far deeper, and is far more difficult to dismiss, than the transitional winds of populist politics. I think the reason this push is coming now is because the public is becoming conscious that rights that they have grown up with, that they have lived their entire lives with, are being stripped from them by unelected, unsupervised, and frankly disconnected individuals. That, more than populism, more than social media, more than any of these "modern woes," is what drives the conversation and public opinion against the Supreme Court as an institution.
Humans though they may be, the collective professional experience of the justices leaves little confidence in any honest commentator that they are at all in touch with the reality of the people who their pronouncements affect. They are primarily appellate lawyers and legal academics who have lived adult lives ensconced at the high levels of government. At the same time, any honest commentator has to also admit that their recent history has been one that has significantly changed the landscape of the law, thrown stare decisis out the window, and taken on a blatantly political tone. Perhaps this is in the same way that many people accuse Brennan opinions of being for liberal causes, but it's quite a different situation when his arguments gave people more latitude while the current Court has consistently taken action that has had the effect of reducing what Americans are entitled to.
So I'd just caution that there's a lot more at play here than anti-elite sentiment and populism. While "judicial independence" and "judicial integrity" may be things that our judiciary excels at in your view, I'll note that this perspective was obtained from the rarified perch, as mentioned in your article, of clerkships with three federal judges. That is not where most of America is coming from. People simply trying to live their lives don't care about abstract measurements of independence and integrity. That is, frankly, a problem for lawyers given the current state of our country. I don't think it's possible, reasonable, or fair for most Americans to share your opinion of the federal judiciary and the Supreme Court since, for most people, their only interaction with this system has been when they are stripping them of rights and freedoms they have held for their entire lives. Once one situates this conversation within that perspective, I think the conversation departs from political theory and finds its basis in reality.
Thank you for this extremely detailed and thoughtful response! It's one of the best we have received so far.
I think it does require buying into a substantive worldview of American law that I'm not sure we share with you. But there's no doubt that a significant number of Americans share your view of this Court and what it has done to the law, and that view certainly contributes to the Court's legitimacy challenges.
Thank you, David! I appreciate you giving my view the time and engaging with it. I think it might be generational thing in a legal education sense. I noticed it a lot with my colleagues who graduated law school with or just before me in the 2020-2023 sort of timeframe; we have a far more pessimistic (and, if I'm honest, somewhat depressing) view of the American legal landscape, perhaps because our legal consciousness has been gained at such a tumultuous time.
Justices Brandeis Frankfurter are three examples whose off the bench activities all were well known to Presidents and anyone in academia lower federal courts and the Georgetown scene for years and no one ever ever questioned their ethical probity in that regard or their friends off the bench
Yes! We actually had an example involving both of them that we had to cut from the article for length reasons:
"Louis D. Brandeis, in his 23 years on the United States Supreme Court, paid Felix Frankfurter, who was then a Harvard law professor, more than $50,000 to further the Justice's goals on public policy, according to previously unpublished letters.
A new study that relies in large part on the letters exchanged by two of 20th-century America's most prominent lawyers and jurists discloses that Brandeis, feeling ethically constrained from engaging directly in extrajudicial activities but possessing strong opinions about the political issues of the day, paid Frankfurter an annual retainer for his efforts."
The major distinction I would highlight, as compared to the issues we are talking about, is that the money was flowing out of Justice Brandeis's pockets rather than into it. That being said, it should have been something Justice Frankfurter disclosed when he was being confirmed.
The WSJ has featured several opinion pieces on the specific issues related to the ethics issues related to the Supreme Court and Justice Thomas in particular. My reading of all of those pieces is that Justice Thomas complied with all of the disclosure rules as they were written at the time and has amended his most recent filing to include disclosures that were not required at the time of his previous filings.
I find it interesting that this issue has been harped upon by Sheldon Whitehous who when he is not railing about Justice Thomas is blathering on about Republicans and dark money while helping himself to donation from 501 c4 groups such as the League of conservation group that don’t have to disclose their donations. Money being the mothers milk of politics and all. This from the September 18 2023 Washington Examiner.
Also Pro Publicia which has written several articles about Justice Thomas but fails to take Justice Sotomayor to task for requiring organizations which she gives talks to sell her autobiography.
I think the Court should adopt rigorous rules and that disclosure be timely. But Justices are people, and as such they have social relationships.
The court is a co-equal branch of government. Congress nor the Executive branch should be making the rules for the court.
Perhaps getting your information from a newspaper whose founder’s mother was a slave holder and supporter of the South during the Civil War is suspect as well. Rupert Murdoch was a self made man who turned on small Australia newspaper into a media empire. We who enjoy the WSJ daily as I have for 45 years appreciate hard work and industry.
Why do you assume that I get my news from any particular source simply because I choose not to rely upon known liars who just had to pay $700 million for lying for my news? And surely, if you have enjoyed the WSJ for 45 years, you recognize that today's Murdoch-owned WSJ barely has an ounce of the credibility of the WSJ of our younger days, especially when it comes to politics/news, such as carrying Sam Alito's water.
Yes old Rupert had to write a check. Also I did assume. But having read the WSJ daily for 45 years I disagree that the credibility has suffered. I use to also read the NYT daily but when every page became the editorial page it was too much. The WSJ really separates the news from the opinion page. And why hate on Sam Alito. I know it was fashionable to slobber all over RBG but why hate?
Yes, people often overlook the fact that the WSJ news and opinion sections operate very independently—and while the opinion page is famously right of center, the news operation is centrist or even left of center. It's also extremely credible and well-respected, especially when it comes to the business news that is its focus. And despite the undeniable influence of the WSJ opinion page in conservative circles, the vast majority of WSJ readers are reading and subscribing for the business news (which hasn't been harmed in any way, as far as I can tell, by Murdoch's ownership).
I would stick with the current ethical regime, which is highly reliant on the appointment of honorable people to the Court. I find the claims lodged against the sitting Justices to be specious in the extreme. As a general matter, ethical regimes advanced by self-righteous, pious and often partisan commentators are yet another sign that we live in troubled times. We all should back the hell off.
Justice Brennan was a former governor who was known for his ability to lobby other justices to gain a plurality of five but his opinions also suffered from the same conclusion driven analysis as CJ Warren If you want to read the best critiques of the Warren Court you must read the works of the late Alexander Bickel , I tend to think that Bickel would be shocked at some of the articles that have passed muster and have been published in law journals since his passing in the 1970s
There's a lot to unpack. As a general rule, I agree with your article. I would liken the SCOTUS justices to star college athletes (In the pre-NIL days) who could not be paid, but received innumerable perks that no ordinary student would receive. You can make arguments both for and against Justice Thomas recusing himself from any 1/6 related cases. I think the waters are muddied by the insinuation in many e-mails that Ginny Thomas essentially served no real political role, but was given a salary because she was Ginny Thomas. Harlan Crowe is a philanthropist and donor, and organizations he supported are advancing cases in the courts designed to land on Thomas's desk. Whether that is enough of an entanglement to be too much is up for debate. The most recent revelations about Justice Thomas and his visit to Koch sponsored events are highly alarming though, especially when mapped against the evolution of his Chevron Deference jurisprudence. The Koch brothers are litigants themselves who have a long and well chronicled crusade against the Chevron doctrine. An individual Justice's jurisprudence on a given issue might well evolve over time, but when it reverses course completely, and does so in a way that benefits a party who is brining a case before the court, and then we discover that party had secretly feted that justice in the past, it's a whole other issue. It gives the appearance that if you have enough money, you can buy a Supreme Court Justice and bend the arc of justice in whatever direction you want to.
So the current recusal rules at least have the virtue of being easy to administer. E.g., do you own stock in a company before the Court, are you related to a litigant before the Court, etc.
It would be much harder to apply the standard of "recuse when you've hung out with someone who has a strong, public interest in the outcome of a certain issue." For example, imagine the Court someday has to review the constitutionality of a wealth tax. Does any justice who has hung out with a billionaire have to recuse?
You can imagine all sorts of other examples, including on the other side. What if, for example, Justice Sotomayor has hung out with a prominent environmental lawyer, and then a huge environmental case comes before the Court? And maybe that lawyer isn't counsel of record, but they have written op-eds and spoken publicly about how the case should come out., and they are "famous" in a way for speaking out on the issue. Should Justice Sotomayor have to recuse?
Sep 28, 2023·edited Sep 28, 2023Liked by David Lat
Justices are people. And they have opinions. And they have friends. And their friends have opinions too. All of this is normal. The issue isn't the social relationships, it's the financial ones. Pay the justices more, but forbid the kind of largesse Justice Thomas has been the recipient of, and you solve 95% of the ethical issues. People are denied security clearances based on excessive indebtedness. The excessive gifts, which the justices have no chance of ever being able to reciprocate, compromise them in the same way as excessive indebtedness does.
Got it. I asked because of your comment about the Koch brothers. I read the ProPublica article, and I don't think it claimed that there was a financial relationship between the Kochs and Justice Thomas (in contrast to Harlan Crow).
My understanding is that he was flown to the event in a private plane. He never disclosed the trip, even after ammending his 2018 disclosures. If the Kochs had held the event within driving distance of DC, or Justice Thomas had flown commercial, or he would have previously disclosed it, I wouldn't have lumped it in. The Kochs are known for security and secrecy at their events, which ordinarily is not a problem. However, when you transport a sitting SCOTUS justice to a secretive and highly secure event by private plane, and no one ever discloses his presence there, and the shift in his jurisprudence is so pronounced, you can't help but wonder what else wasn't disclosed.
But as Justice Thomas and his lawyer explained when he released his latest disclosure, it's his position that prior to the latest changes made to the regulations, private-jet travel did not need to be disclosed. Some people disagree with this interpretation, but that is his position, which explains why he wouldn't have disclosed it (even though he made various amendments to other disclosures).
More than a few Justices on SCOTUS had critical roles in the formulation of public policy and politics while on the bench and hob nobbed both at Georgetown soires and with their peers in politics and academics
At the very least Supreme Court Judges should be held to the Code of Conduct for U.S. Judges. I am hard pressed to rationalize a lesser standard. However, whether they should be held to a higher standard can reasonably be a subject for debate.
They should be held to a higher standard simply because there's nowhere to go after them. A district judge behaved badly? The losing party can appeal. Same for an issue with a court of appeals judge -- recognizing that going to the S Ct is not easy, of course, but you also have the ability to seek en banc review.
In general I tend to be suspicious of claims that a mere socializing by a judge with anyone who has a potential case is primarily facie improper Most judges on every level know more than a few lawyers who appear before them and have well off friends That per se should not be grounds for recusal
Can anyone here imagine what MeToo would say about the off the bench social life of Justice Douglas, a brilliant judge but whose opinions were nowhere as well written and as well supported as those of Justices Harlan or Frankfurter and probably not in the same league for the same reasons as Judges Clark Hand or Friendly on the Second Circuit or judge Wisdom on the Fifth Circuit ?
It would be fascinating, especially since Justice Douglas was very progressive. There are a lot of folks who would find his personal conduct abhorrent but strongly support his judicial agenda (and yes, I'd say he had an agenda).
A retired lawyer. The argument that the current Supreme Court corruption is justified by the overlooking of historical conflicts of interest is specious. One crime (and that's how I view the current activities of some Justices), even if not prosecuted, does not justify another.
One of the reasons I no longer practice law is that so many of the lower court judges have no more integrity than Alito and Thomas.
Just to be clear, we are definitely NOT endorsing what happened in the past. It was entirely wrong, for example, for Chief Justice Burger to be talking on the phone with President Nixon about pending and future cases.
Rather, we were making a descriptive point—in the past, the American public didn't care so much about SCOTUS ethics—on our way to exploring WHY they didn't care so much. We think it's GOOD that the American people care about ethics today. And we say explicitly in our Atlantic piece that SCOTUS should have an ethics code.
Exactly. We make no such argument. Our argument is one of humility/prudence in crafting an ethics code (something we support) NOT excusal of the justices’ behavior then or now.
Understood. My belief, however, is that an ethics code is not enough. One of the culprits (Alito and Thomas clearly knew what they were doing) must be punished in some way in order for present and future justices to clean up their behavior.
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.
David should speak for himself regarding radical transparency. Personally, I would support both monthly disclosures for expenses/payments received over a certain amount and that such disclosures be read from the bench by each justice.
I would pay good money to watch Justice Thomas do a dramatic reading from the bench of "What I Did Over My Summer Vacation" (with Harlan Crow).
"It might also deter people from judicial service."
If having to disclose the fact that a justice has gotten a mega thousand dollar vacation provided by a mega-wealthy guy (or gal) that is having mega-lucrative cases going to the court is going to dissuade people from wanting to be a justice, that is probably a good thing. We don't want folks who embrace this kind of corruption (can anyone say Thomas or Alito or Roberts or Kavanaugh) on the court -- we want honest people who will accept $200K/yr with additional thousands in perks and do the job. But that's definitely too much to ask of Republican appointees.
I would support radical transparency - if a (potential or current) jurist had to supply details of who they had met with and for how long (without, obviously, having to provide details of the discussions they had), it might indeed deter people from judicial service.
But don't we want people who are willing to give up some privacy (some, not all) and more importantly, are willing and able to explain why they met with "the enemy"?
If Justice Sotomayor meets with the Federalist Society for a paid event, that doesn't bother me - I think she's trustworthy and had good reason to do so. If Justice Roberts meets with members of a progressive organization and is paid a fee to do so, again, he has his reasons and they're probably good.
If Justice Thomas does anything, I'm kinda inclined to check his motives.
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.
One proposal I have heard: significantly raise the justices' salaries, but then, as you suggest, ban them from accepting all these "freebies." It strikes me as a reasonable approach.
We could also raise the justices' salaries and then sharply curtail not just their freebies, but also their outside income—e.g., book deals. Or if we still let them do book deals—there is arguably value to the justices speaking to the public—maybe they should not be allowed to get advances, only royalties. Royalties reflect the market value of a book's success, not a publisher paying out a huge advance to curry favor with the author. And of course the justices should have to recuse from cases involving their publishers.
It is equally crazy that a 4th year associate at an AmLaw 100 firm makes more ($293k) than any Justice on the Supreme Court (CJ makes $280k, Associate Justices make $263k).
I would raise the salaries for Supreme Court Justices to be $1M (Circuit Courts of Appeal, $750k, District Court, $500k), which still would be a tiny fraction of what AmLaw 100 equity partners make.
No honoraria, no book advances and no bulk sales of books. No paid junkets from (or attended by) any litigant for the past 10 years.
This would likely mean the end of things like the Patent Prom (a/k/a the Annual NYIPLA gala). While I think it benign, it is a slippery slope.
Those salaries seem about right to me. They might do something about the outflow of talent we've seen recently from the bench to Big Law.
One of my former colleagues when we were AUSAs just left the District Court bench so that he could pay for college for his children. He is in his early 50s, and would have been a great judge for decades if he could have afforded to stay on.
my firm has brought in a couple of now-former federal judges recently, of a similar age range, who told us a similar story about why they left their dream job
If it is all about the money, why would one think that $1M/yr (or $10M/yr or $100M/yr) would make the justices less corrupt? It seems that it would just move them into a different social circle, but never in the rarified atmosphere that Crow or Musk, etc, are in. It would seem that for those that would be attracted because of the massive pay would never be satisfied with it and would in fact only be more inclined to seek out even more corrupt avenues.
Mr. Larson,
The issue is not whether $1 million "will make the justices less corrupt". It is whether the best legal minds will step forward to become federal judges, given the enormous disparity in pay from private practice at an AmLaw100 firm. I know of many attorneys who refused opportunities to become federal judges because they could not manage their lives on the pay of a federal judge.
This is not hard: make the justices follow the code that applies to lower-court judges. The gift limit of $415 is more than generous—higher than the $100 limit for U.S. Senators (hi Senator Menendez!)—but would catch Harlan Crow-level largesse.
https://thehill.com/opinion/judiciary/3934664-will-the-supreme-court-justices-comply-with-new-rules-on-gift-disclosure/
The justices are different from other judges in terms of their fame and power. I see no problem with subjecting them to HIGHER requirements. Also, there will be no shortage of great lawyers willing to serve on SCOTUS, no matter what the pay. (That is different from the lower courts, where judges are retiring in their prime to join firms.)
I think some folks have been misinterpreting our piece's discussion of Supreme Court history, then responding to a straw-person argument. I've made this point in response to a number of individual comments, but I'm going to post it as a freestanding comment as well to increase its visibility.
To be clear, we were definitely NOT endorsing misdeeds of the past. It was entirely wrong, for example, for Chief Justice Burger to be talking on the phone with President Nixon about pending and future cases. Rather, we were making a descriptive point—in the past, the American public didn't care so much about SCOTUS ethics—on our way to exploring WHY they didn't care so much
We then explained why we think it's GOOD that the American people care more about ethics today. And we stated explicitly in our Atlantic piece that the Court SHOULD have an ethics code.
I think the points made in your and your husband's article in The Atlantic are definitely well-taken. It put me in mind of my Federal Courts class in law school and our week-long review of Marbury v. Madison, where Professor Vladeck and the class spent a fair bit of time tracking, with some amusement, all the myriad roles that Chief Justice John Marshall occupied in the facts, and what lengths he went, in his own opinion, to keep his literal name out of it. Based on the lax recusal tradition started as far back as the very inception of the Supreme Court, then, I think the point that this outrage is primarily contemporary is well-taken. However, I think to stop the analysis at basically that "this is a result of a hyper-political and populist America" is pretty reductive and ignores the Supreme Court's own role in eroding their legitimacy in the eyes of the public.
The fact is that this populism and hyper-political environment has not evolved in isolation from the Supreme Court itself, and your article does not seem to discuss that with due attention. The Supreme Court has played a significant role in the decline of public trust in it as an institution aside from ethical controversies. They have invented legal doctrine and overturned long-settled precedent, Roe v. Wade looming large. They have defied Congressional mandate and extensive legislative study on a wide range of issues, the Voting Rights Act being just one of them. The leak of the Dobbs opinion further reveals the cracks in the institution itself, irrespective of their outward positioning. As does the justices' barely concealed disagreement about the solvency of the institutional legitimacy of the Court in the eyes of the American public. Furthermore, other actors in government have taken their own steps to politicize the Court beyond ever before. The stalling of AG Garland's nomination to the Supreme Court looms large in mind.
One cannot also discount where today's Supreme Court falls on the historical right-left spectrum. I think many would agree that, looking at the history of the Supreme Court, it has primarily been a conservative institution. The liberal Warren Court and the "long-held" rights that we often think of were more of an aberration in the history of the institution than today's Court. That being said, the contemporary memory of people goes back only so far, and we have several generations of Americans whose entire lives have been lived under a legal regime where they have had the rights that the Supreme Court now curtails.
So, while the hyper-politicization of the Court does play a role in the push for ethical standards, like your article posits, the push for ethical standards comes from a place far deeper, and is far more difficult to dismiss, than the transitional winds of populist politics. I think the reason this push is coming now is because the public is becoming conscious that rights that they have grown up with, that they have lived their entire lives with, are being stripped from them by unelected, unsupervised, and frankly disconnected individuals. That, more than populism, more than social media, more than any of these "modern woes," is what drives the conversation and public opinion against the Supreme Court as an institution.
Humans though they may be, the collective professional experience of the justices leaves little confidence in any honest commentator that they are at all in touch with the reality of the people who their pronouncements affect. They are primarily appellate lawyers and legal academics who have lived adult lives ensconced at the high levels of government. At the same time, any honest commentator has to also admit that their recent history has been one that has significantly changed the landscape of the law, thrown stare decisis out the window, and taken on a blatantly political tone. Perhaps this is in the same way that many people accuse Brennan opinions of being for liberal causes, but it's quite a different situation when his arguments gave people more latitude while the current Court has consistently taken action that has had the effect of reducing what Americans are entitled to.
So I'd just caution that there's a lot more at play here than anti-elite sentiment and populism. While "judicial independence" and "judicial integrity" may be things that our judiciary excels at in your view, I'll note that this perspective was obtained from the rarified perch, as mentioned in your article, of clerkships with three federal judges. That is not where most of America is coming from. People simply trying to live their lives don't care about abstract measurements of independence and integrity. That is, frankly, a problem for lawyers given the current state of our country. I don't think it's possible, reasonable, or fair for most Americans to share your opinion of the federal judiciary and the Supreme Court since, for most people, their only interaction with this system has been when they are stripping them of rights and freedoms they have held for their entire lives. Once one situates this conversation within that perspective, I think the conversation departs from political theory and finds its basis in reality.
Thank you for this extremely detailed and thoughtful response! It's one of the best we have received so far.
I think it does require buying into a substantive worldview of American law that I'm not sure we share with you. But there's no doubt that a significant number of Americans share your view of this Court and what it has done to the law, and that view certainly contributes to the Court's legitimacy challenges.
Thank you, David! I appreciate you giving my view the time and engaging with it. I think it might be generational thing in a legal education sense. I noticed it a lot with my colleagues who graduated law school with or just before me in the 2020-2023 sort of timeframe; we have a far more pessimistic (and, if I'm honest, somewhat depressing) view of the American legal landscape, perhaps because our legal consciousness has been gained at such a tumultuous time.
Justices Brandeis Frankfurter are three examples whose off the bench activities all were well known to Presidents and anyone in academia lower federal courts and the Georgetown scene for years and no one ever ever questioned their ethical probity in that regard or their friends off the bench
Yes! We actually had an example involving both of them that we had to cut from the article for length reasons:
"Louis D. Brandeis, in his 23 years on the United States Supreme Court, paid Felix Frankfurter, who was then a Harvard law professor, more than $50,000 to further the Justice's goals on public policy, according to previously unpublished letters.
A new study that relies in large part on the letters exchanged by two of 20th-century America's most prominent lawyers and jurists discloses that Brandeis, feeling ethically constrained from engaging directly in extrajudicial activities but possessing strong opinions about the political issues of the day, paid Frankfurter an annual retainer for his efforts."
https://www.nytimes.com/1982/02/14/us/letters-show-frankfurter-a-secret-voice-of-brandeis.html
The major distinction I would highlight, as compared to the issues we are talking about, is that the money was flowing out of Justice Brandeis's pockets rather than into it. That being said, it should have been something Justice Frankfurter disclosed when he was being confirmed.
The WSJ has featured several opinion pieces on the specific issues related to the ethics issues related to the Supreme Court and Justice Thomas in particular. My reading of all of those pieces is that Justice Thomas complied with all of the disclosure rules as they were written at the time and has amended his most recent filing to include disclosures that were not required at the time of his previous filings.
I find it interesting that this issue has been harped upon by Sheldon Whitehous who when he is not railing about Justice Thomas is blathering on about Republicans and dark money while helping himself to donation from 501 c4 groups such as the League of conservation group that don’t have to disclose their donations. Money being the mothers milk of politics and all. This from the September 18 2023 Washington Examiner.
Also Pro Publicia which has written several articles about Justice Thomas but fails to take Justice Sotomayor to task for requiring organizations which she gives talks to sell her autobiography.
I think the Court should adopt rigorous rules and that disclosure be timely. But Justices are people, and as such they have social relationships.
The court is a co-equal branch of government. Congress nor the Executive branch should be making the rules for the court.
Perhaps getting your information from a Rupert Murdoch owned publication is not ideal.
Perhaps getting your information from a newspaper whose founder’s mother was a slave holder and supporter of the South during the Civil War is suspect as well. Rupert Murdoch was a self made man who turned on small Australia newspaper into a media empire. We who enjoy the WSJ daily as I have for 45 years appreciate hard work and industry.
Why do you assume that I get my news from any particular source simply because I choose not to rely upon known liars who just had to pay $700 million for lying for my news? And surely, if you have enjoyed the WSJ for 45 years, you recognize that today's Murdoch-owned WSJ barely has an ounce of the credibility of the WSJ of our younger days, especially when it comes to politics/news, such as carrying Sam Alito's water.
Yes old Rupert had to write a check. Also I did assume. But having read the WSJ daily for 45 years I disagree that the credibility has suffered. I use to also read the NYT daily but when every page became the editorial page it was too much. The WSJ really separates the news from the opinion page. And why hate on Sam Alito. I know it was fashionable to slobber all over RBG but why hate?
Yes, people often overlook the fact that the WSJ news and opinion sections operate very independently—and while the opinion page is famously right of center, the news operation is centrist or even left of center. It's also extremely credible and well-respected, especially when it comes to the business news that is its focus. And despite the undeniable influence of the WSJ opinion page in conservative circles, the vast majority of WSJ readers are reading and subscribing for the business news (which hasn't been harmed in any way, as far as I can tell, by Murdoch's ownership).
I would stick with the current ethical regime, which is highly reliant on the appointment of honorable people to the Court. I find the claims lodged against the sitting Justices to be specious in the extreme. As a general matter, ethical regimes advanced by self-righteous, pious and often partisan commentators are yet another sign that we live in troubled times. We all should back the hell off.
Justice Brennan was a former governor who was known for his ability to lobby other justices to gain a plurality of five but his opinions also suffered from the same conclusion driven analysis as CJ Warren If you want to read the best critiques of the Warren Court you must read the works of the late Alexander Bickel , I tend to think that Bickel would be shocked at some of the articles that have passed muster and have been published in law journals since his passing in the 1970s
Justice Brennan was not a former Governor. He was a Justice on the NJ Supreme Court before he was nominated to SCOTUS.
He was famous for his ability to put together five votes.
There's a lot to unpack. As a general rule, I agree with your article. I would liken the SCOTUS justices to star college athletes (In the pre-NIL days) who could not be paid, but received innumerable perks that no ordinary student would receive. You can make arguments both for and against Justice Thomas recusing himself from any 1/6 related cases. I think the waters are muddied by the insinuation in many e-mails that Ginny Thomas essentially served no real political role, but was given a salary because she was Ginny Thomas. Harlan Crowe is a philanthropist and donor, and organizations he supported are advancing cases in the courts designed to land on Thomas's desk. Whether that is enough of an entanglement to be too much is up for debate. The most recent revelations about Justice Thomas and his visit to Koch sponsored events are highly alarming though, especially when mapped against the evolution of his Chevron Deference jurisprudence. The Koch brothers are litigants themselves who have a long and well chronicled crusade against the Chevron doctrine. An individual Justice's jurisprudence on a given issue might well evolve over time, but when it reverses course completely, and does so in a way that benefits a party who is brining a case before the court, and then we discover that party had secretly feted that justice in the past, it's a whole other issue. It gives the appearance that if you have enough money, you can buy a Supreme Court Justice and bend the arc of justice in whatever direction you want to.
Thanks Gavin! Here's a follow-up question.
So the current recusal rules at least have the virtue of being easy to administer. E.g., do you own stock in a company before the Court, are you related to a litigant before the Court, etc.
It would be much harder to apply the standard of "recuse when you've hung out with someone who has a strong, public interest in the outcome of a certain issue." For example, imagine the Court someday has to review the constitutionality of a wealth tax. Does any justice who has hung out with a billionaire have to recuse?
You can imagine all sorts of other examples, including on the other side. What if, for example, Justice Sotomayor has hung out with a prominent environmental lawyer, and then a huge environmental case comes before the Court? And maybe that lawyer isn't counsel of record, but they have written op-eds and spoken publicly about how the case should come out., and they are "famous" in a way for speaking out on the issue. Should Justice Sotomayor have to recuse?
Justices are people. And they have opinions. And they have friends. And their friends have opinions too. All of this is normal. The issue isn't the social relationships, it's the financial ones. Pay the justices more, but forbid the kind of largesse Justice Thomas has been the recipient of, and you solve 95% of the ethical issues. People are denied security clearances based on excessive indebtedness. The excessive gifts, which the justices have no chance of ever being able to reciprocate, compromise them in the same way as excessive indebtedness does.
Got it. I asked because of your comment about the Koch brothers. I read the ProPublica article, and I don't think it claimed that there was a financial relationship between the Kochs and Justice Thomas (in contrast to Harlan Crow).
My understanding is that he was flown to the event in a private plane. He never disclosed the trip, even after ammending his 2018 disclosures. If the Kochs had held the event within driving distance of DC, or Justice Thomas had flown commercial, or he would have previously disclosed it, I wouldn't have lumped it in. The Kochs are known for security and secrecy at their events, which ordinarily is not a problem. However, when you transport a sitting SCOTUS justice to a secretive and highly secure event by private plane, and no one ever discloses his presence there, and the shift in his jurisprudence is so pronounced, you can't help but wonder what else wasn't disclosed.
But as Justice Thomas and his lawyer explained when he released his latest disclosure, it's his position that prior to the latest changes made to the regulations, private-jet travel did not need to be disclosed. Some people disagree with this interpretation, but that is his position, which explains why he wouldn't have disclosed it (even though he made various amendments to other disclosures).
More than a few Justices on SCOTUS had critical roles in the formulation of public policy and politics while on the bench and hob nobbed both at Georgetown soires and with their peers in politics and academics
At the very least Supreme Court Judges should be held to the Code of Conduct for U.S. Judges. I am hard pressed to rationalize a lesser standard. However, whether they should be held to a higher standard can reasonably be a subject for debate.
They should be held to a higher standard simply because there's nowhere to go after them. A district judge behaved badly? The losing party can appeal. Same for an issue with a court of appeals judge -- recognizing that going to the S Ct is not easy, of course, but you also have the ability to seek en banc review.
In general I tend to be suspicious of claims that a mere socializing by a judge with anyone who has a potential case is primarily facie improper Most judges on every level know more than a few lawyers who appear before them and have well off friends That per se should not be grounds for recusal
Can anyone here imagine what MeToo would say about the off the bench social life of Justice Douglas, a brilliant judge but whose opinions were nowhere as well written and as well supported as those of Justices Harlan or Frankfurter and probably not in the same league for the same reasons as Judges Clark Hand or Friendly on the Second Circuit or judge Wisdom on the Fifth Circuit ?
It would be fascinating, especially since Justice Douglas was very progressive. There are a lot of folks who would find his personal conduct abhorrent but strongly support his judicial agenda (and yes, I'd say he had an agenda).
A retired lawyer. The argument that the current Supreme Court corruption is justified by the overlooking of historical conflicts of interest is specious. One crime (and that's how I view the current activities of some Justices), even if not prosecuted, does not justify another.
One of the reasons I no longer practice law is that so many of the lower court judges have no more integrity than Alito and Thomas.
Just to be clear, we are definitely NOT endorsing what happened in the past. It was entirely wrong, for example, for Chief Justice Burger to be talking on the phone with President Nixon about pending and future cases.
Rather, we were making a descriptive point—in the past, the American public didn't care so much about SCOTUS ethics—on our way to exploring WHY they didn't care so much. We think it's GOOD that the American people care about ethics today. And we say explicitly in our Atlantic piece that SCOTUS should have an ethics code.
Exactly. We make no such argument. Our argument is one of humility/prudence in crafting an ethics code (something we support) NOT excusal of the justices’ behavior then or now.
Understood. My belief, however, is that an ethics code is not enough. One of the culprits (Alito and Thomas clearly knew what they were doing) must be punished in some way in order for present and future justices to clean up their behavior.
I appreciate a measured column like this, rather than the knee-jerk condemnation from one side and tone-deaf defense from the other.
Unfortunately, reasonable is not the order of the day.
Thank you! We were trying to be reasonable (as opposed to "Justice Thomas is evil" or "Justice Thomas is above all reproach").
Thomas J., is just one guy out of 870.