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How the Supreme Court can finally get its house in order

Calls for a new ethics code for the justices miss the point.

In the wake of multiple recent ethics issues involving Supreme Court justices, many people have called for a new “ethics code” for the Supreme Court. The Senate Judiciary Committee is holding a hearing on a new “code of conduct” Tuesday, and several lawmakers have advanced bills proposing such a code. But the Supreme Court already has an ethics code. What’s lacking is a way to enforce it, a way to hold justices accountable when they violate the law. The court’s system of self-regulation has broken beyond repair and must be replaced with a new system of supervision.

The Supreme Court’s rules on ethics can be found in the U.S. Code, federal statutes that require both annual financial disclosure reports from all federal judges and recusals from cases in which justices’ impartiality can reasonably be questioned. Let’s start with the financial disclosure rules, imposed on all three branches of the federal government since the Ethics in Government Act of 1978 was passed after Watergate. The underlying concept is simple: If you hold a high-ranking government position, the public has the right to know what investments you and your spouse have, where your income is coming from and who is giving you gifts, whether in physical form or as free trips and lodging from millionaires and billionaires.

Even though these rules seem straightforward, justices have struggled to comply.

These disclosures are important. Some Supreme Court spouses make a lot of money, sometimes from people interested in cases before the court. Similarly, gifts from “personal friends” are allowed but must be disclosed. And yes, some of these friends have yachts and private planes to fly around their friends who happen to be Supreme Court justices. Ideally these gifts should be refused, but under the Ethics and Government Act at a minimum they must be disclosed. There is an exception for “personal hospitality,” but that exception is expressly limited to food, overnight lodging in the friend’s home while the friend is present and entertainment in the home. Free transportation has never been exempted from the disclosure requirement, a point that I and other White House ethics lawyers have explained to staff members in several administrations going back to the 1990s.

Even though these rules seem straightforward, justices have struggled to comply. Chief Justice John Roberts’ wife, Jane, has, made millions in commissions as a legal recruiter for law firms — including firms that argue cases before the court. But the chief justice fudged the details in his annual disclosure, misleadingly describing his wife’s earnings as “salary.” Then there is Justice Neil Gorsuch, whose Colorado home was purchased in 2017 by the head partner of a law firm with cases before the court. The transaction was disclosed, but the identity of the buyer wasn’t — which again avoids the entire point of disclosure.

And then there’s Justice Clarence Thomas. His wife, Ginny, has made millions in consulting gigs with conservative organizations keenly interested in the Supreme Court. The justice has frequently failed to disclose the sources of the money, and sometimes even the money itself. Neither did he disclose his years of free travel and lodging from billionaire Harlan Crowe or the sale of his mother’s home to Crowe.

Thomas is also the face of the court’s recusal problem. Another federal statute requires federal judges and justices to recuse from cases in which their impartiality might reasonably be questioned, including cases in which their spouses have interests. By way of example, if a justice’s wife is involved in efforts to overturn a presidential election, the justice should recuse from cases involving the presidential election and those efforts.

Yet when the House Jan. 6 committee subpoenaed documents that included communications between White House staff members and Ginny Thomas about overturning the 2020 election, her husband refused to recuse himself when the Trump administration’s appeal to stay the subpoena reached the high court. This was not only morally wrong but also a clear violation of the recusal statute. (In the end, Thomas was the only justice who voted to grant the administration’s requested stay.)

An ethics lawyer is only the first reform. The second is an inspector general for the Supreme Court.

Why isn’t this being fixed? Because the justices are allowed to enforce the rules themselves, with nobody looking over them. The Supreme Court is affected by the same corrosive phenomenon we see elsewhere, including in corporations, police departments, academic departments, fraternity houses and many other organizations and businesses: colleagues covering for colleagues. Such private clubs don’t function well as self-regulatory organizations.

Indeed, federal district and appeals judges are already subject to outside oversight, which includes investigations and imposition of discipline by the Judicial Conference of the United States. But the justices of the Supreme Court alone enforce the ethics rules for themselves. And their approach is to allow each justice alone to decide how, or whether, to comply with the law. Colleagues cover for colleagues.

The solution is the same as in other instances of professional misbehavior in close-knit groups of colleagues. We need meaningful supervision, with investigations of alleged wrongdoing and sanctions for those who violate rules. First, the Supreme Court needs a full-time ethics lawyer appointed by the chief justice with the consent of the eight other justices. The ethics lawyer would advise the justices, preferably in writing, about how to comply with the ethics rules in specific instances. That the justices would select their own ethics lawyer isn’t unusual — governmental organizations usually are allowed to pick their own lawyers, and one whom all nine justices agree on is likely to be good.

An ethics lawyer is only the first reform. The second is an inspector general for the Supreme Court. This person would be appointed by the chief justice with the consent of the other justices and confirmed by the Senate to a five-year term and removable only for cause. The Supreme Court inspector general would, like inspectors general in federal agencies, investigate allegations of wrongdoing by justices, clerks or other staff members of the court. If justices don’t take the advice of the ethics lawyer or if they act without consulting the lawyer, that would be referred to the inspector general for investigation. The inspector general would submit reports to Congress, which would typically be made public. And where criminal statutes are implicated, the case could be referred to the Department of Justice.

The justices interpret the Constitution and laws of the U.S. in decisions binding on lower courts and that affect all of our lives. They have lifetime tenure, but we have seen that tenure combined with colleagues covering for colleagues doesn’t work. Nobody is above the law. The justices also must obey the law. The court can’t be allowed to become an Animal House of ethics, and if the justices think there’s nobody to supervise them, Congress will need to show them that they are badly mistaken.