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Stephen Spaulding is the vice president of policy and external affairs at Common Cause. He wrote this for InsideSources.com.
Our nation’s highest court — the Supreme Court — should live by the highest ethical standards. Right now, no transparent code of conduct governs its nine members like there is for all other federal judges — one that requires judges to “avoid impropriety and the appearance of impropriety in all activities.” It is long past time for that to change.
Earlier this spring, ProPublica broke the news that Justice Clarence Thomas secretly accepted hundreds of thousands of dollars (at a minimum) in travel and vacations from Harlan Crow, an ultra-wealthy supporter of conservative efforts to change the federal judiciary and the law.
Thomas, who first met Crow after he joined the court, did not disclose a penny of what ProPublica uncovered, saying later that he thought a “personal hospitality” exemption applied. Thomas presumably referred to his disclosure obligations under the Ethics in Government Act of 1978, which requires public officials — including Supreme Court justices — to report certain gifts so that the public can “follow the money” and evaluate conflicts of interest.
After ProPublica’s reporting, Thomas will amend some disclosure forms to account for a previously undisclosed real estate deal with Crow in 2014 as part of the megadonor’s plans to build a museum to honor Thomas. This is not the first time that Thomas has had to take steps to comply with his transparency obligations after third-party revelations. In 2011, he amended 20 years’ worth of disclosure forms after Common Cause discovered that he had failed to report the source of income for his wife, a political activist.
Why does this matter? It is about much more than Thomas. With each stroke of their pens, Supreme Court justices change the lives of everyday Americans when they decide cases. Both the public and litigants must be able to assess any potential conflicts of interest for themselves. We need to ensure that the people making these decisions are fair and impartial.
A warning sign is blinking that this is not what the public believes. A new poll by NPR, PBS “NewsHour” and Marist found that 6 in 10 respondents had little to no confidence in the court. This continues a dangerous downward trend in public trust in the institution. It comes as the court has issued a series of deeply unpopular opinions to roll back reproductive freedom, gut the Voting Rights Act, and greenlight unlimited corporate spending in elections.
Action is as urgent as it is overdue. Strengthening ethics at the Supreme Court is only one step to building trust — it is far from a panacea. But it is vital. At a minimum, we need better compliance with and enforcement of the Ethics in Government Act of 1978, but that alone is insufficient. The court must also adopt a transparent code of conduct. If it fails to do so voluntarily, Congress must act swiftly to make it happen.
It has been more than a decade since Chief Justice Roberts used his 2011 year-end report on the federal judiciary to discuss Supreme Court ethics. In it, he said that while Supreme Court justices “consult” the Code of Conduct that applies standards of ethics to all other federal judges, the court “has had no reason to adopt the Code of Conduct as its definitive source for ethical guidance” — calling it, instead, a “starting point” because it does not “adequately answer some of the ethical considerations unique to the Supreme Court.” Roberts confirmed in 2012 that “the court does not plan to adopt the Code of Conduct for United States Judges.”
Senate Judiciary Committee Chair Dick Durbin, D-Illinois, recently invited the chief justice to testify at a hearing “regarding the ethical rules that govern the justices of the Supreme Court and potential reforms to those rules.” Roberts “respectfully” declined, offering instead a statement signed by all the justices in which they “reaffirm and restate foundational ethics principles and practices” to which they abide.
Congress should quickly pass legislation requiring enforceable and transparent ethical standards at the court. Several pending bills would do just that, including the Supreme Court Ethics Act and the Supreme Court Ethics, Recusal and Transparency Act. These merit bipartisan examination, refinement and passage.
The Supreme Court cannot be its own referee. Justices have tried and failed repeatedly. We should expect all public officials to abide by high ethical standards when conducting the people’s business — no exceptions.