Sen. Dick Durbin has had enough. After news broke about yet another Supreme Court ethics scandal — this time, revelations that Justice Samuel Alito went on a lavish vacation with a billionaire GOP donor, and failed to recuse himself from multiple cases involving that donor — Durbin, an Illinois Democrat and chair of the Senate Judiciary Committee, has announced that the committee will vote next month on legislation to create enforceable ethics requirements for Supreme Court justices.
Durbin’s announcement, though well overdue, is a promising sign. The key now is to make sure that any attempt at reforming the court is meaty enough to fix its acute vulnerability to corruption.
The latest case involving Alito should anger anyone who cares about democracy, regardless of where they stand on the political spectrum. ProPublica reports that in 2008 hedge fund billionaire and GOP donor Paul Singer flew Alito to Alaska on a private jet, which ProPublica estimated would have cost Alito over $100,000 if he had chartered it himself. Alito didn’t disclose that gift. He also didn’t later recuse himself from ruling on cases involving Singer’s businesses.
The bigger picture issue here is that there is no binding, enforceable code of conduct for Supreme Court justices.
In an extraordinary maneuver, Alito attempted to pre-emptively defend himself by writing an op-ed for The Wall Street Journal arguing that he was not obligated to disclose the trip and that he was not aware of Singer’s businesses. But as my colleague Jordan Rubin pointed out, on both counts Alito’s arguments are shoddy: He could’ve, and should’ve, found a way to guard against conflict of interest with Singer; and his argument that he didn’t need to disclose the flight was predicated on an untenable argument that the flight didn’t count as a gift.
Alito’s shady behavior is only the latest story of inappropriate behavior among the high court’s justices to emerge in recent months. ProPublica also recently uncovered Justice Clarence Thomas’ links to billionaire GOP megadonor Harlan Crow. Among other things, Crow paid for Thomas’ grandnephew to attend a private school and invited Thomas to luxury vacations in exotic locales on Crow’s yacht and private jet. Thomas did not disclose these gifts either.
A number of legal experts have argued that these nondisclosures violate a federal law passed after the Watergate scandal that requires Supreme Court justices and many other federal officials to report most gifts. But in reality adherence to disclosure or recusal requirements when justices have a personal relationship with the gift giver has been treated more as a norm to observe than a law to follow. And when there is a personal relationship, the justice is not explicitly prohibited from taking gifts from someone who might later come before the court.
The bigger picture issue here is that there is no binding, enforceable code of conduct for Supreme Court justices. Now Durbin and other members of Congress concerned about corruption on the court are looking to change that.
Durbin’s office told me that the Senate Judiciary Committee is considering “several bills” that have been introduced on the issue of Supreme Court reform. But legal experts say it’s likely that the Supreme Court Ethics, Recusal and Transparency Act (SCERT), introduced in the Senate by Sen. Sheldon Whitehouse, D-R.I., will serve as a starting point for any kind of legislative markup.
As the name suggests, SCERT would fall under three buckets. It would create an ethical code of conduct that’s meant to be enforced. It would improve financial disclosure standards to be at least as strong as those for members of Congress. And it would strengthen recusal requirements to reduce conflicts of interest or the appearance of conflict interests. To help enforce these rules the law would, among other things, create an investigative board for complaints about the justices, have recusal requests reviewed by a panel of randomly selected lower-court judges, and require reports on judges’ compliance with the rules.
A number of good governance watchdogs see SCERT as a good start to fixing the Supreme Court’s ethics problem. “The first step to eliminating corruption is understanding what’s going on,” Lisa Gilbert, executive vice president at Public Citizen, a watchdog group, told me.
But the question remains as to whether measures focused on transparency and the deterrence effect of stigma is enough given what's at stake. Even more robust disclosure of gifts and recusals might not be enough to offset the reality that many justices — both liberal and conservative — take hundreds of privately sponsored trips. The premise of the Supreme Court is that the jurists are supposed to be interpreters and arbiters of the law who draw only from their own study and interpretations — so why are we leaving so many opportunities for them to be feted by powerful moneyed interests and potentially become vehicles for their agendas?
It only makes sense to look at the more aggressive regulatory mechanisms. A New York Times editorial in April suggested that the court adopt “the kinds of gift limits that apply to members of Congress and other federal employees,” while also creating an ethics office similar to the ethics committees in Congress. Whatever the exact remedy, it needs to be strong, and it needs to be chosen urgently. The Supreme Court already has too much power.