The Supreme Court is back in the news and it's for all the wrong reasons. ProPublica reports that Justice Clarence Thomas has vacationed on private jets and superyachts all paid for by billionaire Harlan Crow. But Thomas didn’t disclose those trips. And his actions are just the Court’s latest ethics scandal. Last summer someone leaked the decision in Dobbs, the case that overturned Roe v. Wade. And the New York Times reports that the Supreme Court Historical Society – which is technically a charity – has raised over $23 million in the last two decades from private donors. The Society often hosts events where those private donors can meet and mingle with the Justices behind closed doors.
That level of access to the Justices matters because each year the Court decides cases that impact everything from reproductive rights to gun control and the environment. The appearance that some people can buy influence on the court undermines the idea that everyone has an equal opportunity to have their case heard and fairly decided. In theory, there would be ethics laws in place to prevent a sitting Justice from accepting secret swanky vacations on superyachts and Adirondack hideaways. But do those laws really exist?
To help us understand judicial ethics and what can be done to keep the Justices accountable, we have Caroline Fredrickson and Alan Neff.
Caroline is a Visiting Professor at Georgetown Law and a Senior Fellow at the Brennan Center for Justice. Alan recently co-edited Rule of Law this week for the American Constitution Society and is a former lawyer for the City of Chicago. They are both experts on judicial ethics and the judicial system.
Show Notes:
The Supreme Court is back in the news and it's for all the wrong reasons. ProPublica reports that Justice Clarence Thomas has vacationed on private jets and superyachts all paid for by billionaire Harlan Crow. But Thomas didn’t disclose those trips. And his actions are just the Court’s latest ethics scandal. Last summer someone leaked the decision in Dobbs, the case that overturned Roe v. Wade. And the New York Times reports that the Supreme Court Historical Society – which is technically a charity – has raised over $23 million in the last two decades from private donors. The Society often hosts events where those private donors can meet and mingle with the Justices behind closed doors.
That level of access to the Justices matters because each year the Court decides cases that impact everything from reproductive rights to gun control and the environment. The appearance that some people can buy influence on the court undermines the idea that everyone has an equal opportunity to have their case heard and fairly decided. In theory, there would be ethics laws in place to prevent a sitting Justice from accepting secret swanky vacations on superyachts and Adirondack hideaways. But do those laws really exist?
To help us understand judicial ethics and what can be done to keep the Justices accountable, we have Caroline Fredrickson and Alan Neff.
Caroline is a Visiting Professor at Georgetown Law and a Senior Fellow at the Brennan Center for Justice. Alan recently co-edited Rule of Law this week for the American Constitution Society and is a former lawyer for the City of Chicago. They are both experts on judicial ethics and the judicial system.
Show Notes:
Paras Shah: The Supreme Court is back in the news and it's for all the wrong reasons. ProPublica reports that Justice Clarence Thomas has vacationed on private jets and superyachts all paid for by billionaire Harlan Crow. But Thomas didn’t disclose those trips. And his actions are just the Court’s latest ethics scandal. Last summer someone leaked the decision in Dobbs, the case that overturned Roe v. Wade. And the New York Times reports that the Supreme Court Historical Society – which is technically a charity – has raised over $23 million in the last two decades from private donors. The Society often hosts events where those private donors can meet and mingle with the Justices behind closed doors.
That level of access to the Justices matters because each year the Court decides cases that impact everything from reproductive rights to gun control and the environment. The appearance that some people can buy influence on the court undermines the idea that everyone has an equal opportunity to have their case heard and fairly decided. In theory, there would be ethics laws in place to prevent a sitting Justice from accepting secret swanky vacations on superyachts and Adirondack hideaways. But do those laws really exist?
This is the Just Security podcast. I’m your host Paras Shah.
To help us understand judicial ethics and what can be done to keep the Justices accountable, we have Caroline Fredrickson and Alan Neff.
Caroline is a Visiting Professor at Georgetown Law and a Senior Fellow at the Brennan Center for Justice. Alan recently co-edited Rule of Law this week for the American Constitution Society and is a former lawyer for the City of Chicago. They are both experts on judicial ethics and the judicial system.
Hey Caroline, hey Alan. Welcome back to the show.
Alan Neff: Good to see you.
Caroline Fredrickson: Thanks for having us.
Paras: We often think about the Supreme Court being in the headlines when we see big cases on abortion or gun control, but there’s something else that’s going on in the background, which are these large ethical questions about how these Justices are behaving and the appearance of justice, what we can think about as people getting a fair shake before the court. Last year there was the leak of the Dobbs decision to Politico, and it seems like for the last twenty years, Justice Thomas has been living in an episode of Succession. He’s even got the superyacht and the cigars. What should we make of all this?
Caroline: I'd say there are two broad categories here of violations, but they really bleed into each other. In one group you could sort of put issues that raise concerns about partisanship and ideological bias, and another set of issues that raises concerns, the appearance of corruption.
Paras: It seems like Justice Thomas accepting these luxury vacations is an example of those two trends you just mentioned, the idea of ideological bias and the appearance of corruption with donors having access to the Court.
Caroline: Justice Thomas in particular has gotten a great deal of large in return, including trips, repeated trips that cost well over half a million dollars a piece. I can't even imagine how luxurious that could be – flights on private planes, stays in a private home in the Adirondacks, which is more like a full commercial resort. I can't imagine somebody calling that their country cabin.
And the ProPublica reporting that brought that forward had this incredible photograph, which was actually a photograph of a painting, which makes it actually very more peculiar. The donor here, billionaire Harlan Crow, had hosted Justice Thomas multiple times at this resort. It's like a Disney World of the Adirondacks or something. Justice Thomas, along with Leonard Leo, who is one of the leads at the Federalist Society and helped stock the federal bench under Donald Trp with right wing extremists, and a couple of other ex right wing lawyers were sitting on a bench in front of this incredibly stereotypical statue of a Native American man, full headdress with his arms raised, looking all the noble savage. And they're smoking cigars and they made a painting of this. Anyway, it just symbolizes sort of where we are. It's the plutocrat, the ideologue, and the Justice, you know, sitting on a bench, smoking cigars and figuring out how to take over the federal judiciary and advance a vision that is completely antithetical to what the vast majority of Americans want. And now we're understanding the mechanics, thanks to this incredible reporting that shows the money flows, that shows the interests, and shows the real access that has been.
Alan: In the article we did for Just Security, we didn't even get into the story specifically related to Justice Thomas, which stretched back into the early two thousands when he did not report $686,000 of income his wife received over a five year period from the Heritage Foundation, and he said he failed to report it because he misunderstood the filing instructions.
Paras: And for listeners who might not remember, the Heritage Foundation is a conservative think tank based in D.C.
Alan: This is a guy who's been in public service employed by the federal government in one or another capacity since 1981 — 41 years, and for him to claim at this point that he doesn't understand the filing instructions related to the law governing disclosure of financial benefits or other kinds of gifts received by federal employees, it doesn't merely strain credulity, it sort of melts it down because, you know, his own performance on reporting these kinds of issues is either incompetent, negligent, or contemptuous of the requirements.
You know, there's no gloss you can put on it, and it's been such a persistent pattern of conduct that it seems to me that it falls well outside any small errors and omissions kind of explanation. The amounts at issue, the circumstances in which it's happened, the associations of the people from which all those kinds of funds have come, just suggest this is a matter of buying access and that it's only occurred because Thomas was appointed to the Supreme Court.
Paras: So that's a lot of different types of issues that are going on, and in theory we have laws on the books and standards for lawyers and judges that are supposed to behave to stop this from happening, or at least shed some light on it. I remember when I was in law school, I had to take an ethics test before I could even sit for the bar exam. Can you help us understand the legal and ethical landscape here? What are judges supposed to do?
Caroline: Well, you know, I think we'll start with the broad brush, which is to say that there's financial disclosure laws that apply to the Justices as well that actually have real penalties for failure to abide by them.
Clearly real estate transactions are covered. There was some claimed ambiguity on the part of Justice Thomas about the costs of travel on the yachts and the private planes that he alleges that some unknown other Justice — and we’ll just pretend it's Justice Scalia, since he liked it, the swanky lifestyle himself — told him at some point in the past that you probably didn't need to disclose that, and I guess being a Justice, he didn't really bother to actually read the law or anything because who does that?
The other area is really directed more at conduct, appearances and behavior, that doesn't go so directly to sort of financial entanglements, but goes to the perception of impartiality and fairness by the courts, and that is, you know, to refrain from being involved in activities that look partisan, showing themselves to be of good reputation and so forth.
Paras: Got it. So, there are really two sets of rules that can be used here. On the one hand, you have the code of conduct that models behave, and that’s been adopted by the Judicial Conference and it applies to federal judges. And on the other hand, there’s the Ethics in Government Act, and that creates a duty for federal employees, including Supreme Court Justices, to file annual reports about certain kinds of gifts and income they receive, and that has fines and criminal penalties for knowingly and willfully failing to make those disclosures.
Alan: And just to follow onto that, I want to make it very clear that the language of the federal ethics law, as apart from the code of conduct, is not “should” language, it’s “shall” language. It’s mandatory language. It applies expressly and explicitly to every federal employee in all the branches, and the Federal Act, as apart from a code of conduct for judges, has criminal penalties for falsification of reporting and fines for errors and omissions.
So far as we know, it's never been tested with respect to its application to the Supreme Court. But it would be a pretty interesting outcome and say an awful lot about the Court if it said, well, federal law doesn't apply to us.
Caroline: You know, let's face it, judges, they have life tenure on the federal court, so fines and penalties are certainly one way in dealing with the financial disclosure laws, which they are subject to. The behavioral issues, because there is this enforcement regime that allows the airing of complaints, there is a certain amount of ability to constrain them just through public awareness and condemnation.
I think the Supreme Court now, we need to see them — or others such as Congress — develop a regime where the financial disclosure laws are enforced against them. A Supreme Court ethics office, as advanced by Senator Whitehouse and his bill, could also monitor those things. And I think that is, you know, a very effective way to constrain their behavior, at least I'm hoping it would be. It would certainly be better than what we have now, which is essentially impunity.
Paras: The code of judicial ethics is binding on hundreds of lower federal court judges. How do the Supreme Court Justices think about it?
Alan: The Supreme Court doesn't identify itself as subject to the code of the Judicial Conference’s code of conduct.
Paras: Really? Can it do that?
Alan: Well, that's a very good question. You know, you can make an argument that it stands apart from the Judicial Conference, but not in any really meaningful, structural or substantive way. I think the Justices claim, to a certain extent, that they comply with the guidance in the code, but there's no enforcement machinery.
Caroline: And now we know they don't comply, so, I think we have evidence to the contrary. What the Justices fall back on — certainly Chief Justice Roberts continues to flick this away by suggesting there's some separation of powers issues here — that somehow the Supreme Court, as opposed to the other courts, is more independent from the rest of the government. Sure, it's mentioned separately in the Constitution, but does that sustain this, you know, entire interpretation that the Supreme Court is somehow unique?
Well, then let them fund themselves. If they really are completely separate, then they should develop their own, you know, they could have a bake sale or something, or figure out some other way to kind of keep themselves financially secure. But honestly, we have a system where there are checks and balances and, and if this, there's not a better example where checks and balances are needed than what we've seen on the court with this dismaying parade of improper behavior by the Justices. And so, I mean, the only way I suppose this could be tested is the Supreme Court could say, you know what? Separation of powers? We're not gonna abide. And I don't think that's a good look for the Supreme Court.
I think this would just be the moment in which we'd see the slide in public opinion that the Court has been on turned into really a sheer drop off a cliff face. It would show that this is, you know, a court that thinks it's above the law. And if rule of law is the whole idea of having judicial review is to constrain the other branches, but if the judiciary is itself unconstrained, it really starts to beg the question of whether our entire constitutional system is, you know, is failing.
Paras: Right, and this isn’t just a hypothetical. Democracy is being challenged all around the world. What is happening in other places, and what could that mean for the US?
Caroline: The judiciary is a familiar target in terms of either undermining its power, because it has become a threat to one other part of the government, like the executives say in Israel, where the Prime Minister in working through Parliament has tried to basically neuter the court, which has stood as a bulwark in terms of protecting some civil and human rights in Israel.
But otherwise you also see the courts being usurped by other power centers. In Russia, clearly the court system is under Putin’s thumb. Similarly, in Hungary, in Poland, where the courts are very much an administrative tool of the executive. But that has helped, in part, advance a really ideological viewpoint, and in this case, we still don't have quite that scenario, but we do have a court system that is exhibiting other profound pathologies, which, you know, include being very much identified now with a certain right wing viewpoint that is very much antagonistic to where the majority of Americans are. The idea of a judicial review starts to become extremely problematic when you have a court that is very much out of step with where the majority of the public is over a period of time.
Paras: Chief Justice Roberts is known for thinking about the Court’s legacy as an institution. Can’t he do anything to get his fellow Justices to abide by these ethical rules?
Alan: Well, it's colloquial. I mean, they sit down and discuss what they're gonna do about cases, and there's no reason they couldn't do the same thing with their behavior. But I don't think Chief Justice Roberts has any interest in that. I mean, he's remained by and large silent in the face of all of these disclosures. He could certainly sit down with the Court, with the other Justices, and say, we really need to present a public face that reassures the public that we're acting with propriety, but I think his power in that respect is limited to jawboning them.
I was reminded of the Shakespeare line, come the revolution and we’ll kill all the lawyers. Well, it turns out really, come the revolution, we'll just buy them and reward them for making decisions we like and failing that, we’ll simply replace the ones we don't like and fill the court with judges who are who have preexisting biases in our favor. I don’t think Chief Justice Roberts has more than exhortatory power over his fellow Justices, and the real engine for controlling behavior is disclosure, as federal reporting requirements lay out.
Paras: Are there other solutions that Congress could use to get involved here?
Caroline: You know, absolutely, and Congress is itching to get involved at this point. There are two things that members have proposed, and they're sort of sequential, one happens if the other doesn’t. That is, they passed legislation that basically request the Court to impose a code of conduct on itself, but doesn’t say what it is. And so that's one approach. The other is to actually mandate a code of conduct, which would probably be essentially what the Court would adopt for itself anyway, which would be modeled on what applies to the rest of the judiciary.
Now again, this wouldn't solve the problem necessarily of having, you know, an actual penalty associated with bad behavior as opposed to the financial disclosure laws, but if it were to include, and you know, I think it would have to, a Supreme Court ethics office that would be responsible for reviewing disclosure filings for reviewing those disclosure filings, those disclosure filings would elaborate on the recusal rules, which we say we see being, you know, completely ignored or only partially followed and, so we would actually have some data on which Justice is recused for what reason.
Honestly, I think one of the much more important issues is to have financial disclosure rules apply to the Supreme Court, in addition, though, to have the gift ban rules that apply to the rest of the federal government, apply to the Justices. The kind of flagrant behavior that Justice Thomas and before him Justice Scalia exhibited in taking these kinds of trips is just not acceptable. It should be completely — you know, I don't care if this guy is supposedly his friend. There are limits to friendship, and you can pay back. You know, if you want to go on that plane, you should, you know, should pay for some of the costs. Look at what the rules are for everybody else in the federal government, and just apply those to the justices. I really don't see why they have to live the high life. If they wanted that, they should go into private practice and make a salary there and not say they're doing the people's business.
Alan: Yeah, and I’d add that the Supreme Court Historical Society should not be allowed to accept private contributions. As nice an idea as that is, it's clearly been used as a pathway of access for wealthy people to hobnob with the judges, the Justices, and ingratiate themselves with them.
One of the pieces of testimony was from that pastor who revealed how he believed the Hobby Lobby decision was leaked.
Paras: Right, that’s Rev. Rob Schenck.
Alan: And he described a multi-pronged campaign to build alliances between the Court and the right wing evangelical community. And one of their primary pathways for that access was the Supreme Court Historical Society through contributions and events and that simply has to stop. That should not be permitted any longer. It's great to have the Supreme Court develop historical archives and educate the public about them, but that cannot be done with private donors who buy access to the Justices. That's just, it's inviting a kind of poison entering the bloodstream in the Court.
Paras: This has been a great discussion, is there anything else you’d like to add?
Caroline: I would say one thing I wanted to add, and it may be because you know, I teach at law schools, I teach both legislation and I teach constitutional law, so I've been looking at the case involving the Governor of Virginia, Governor McDonald, who was the recipient of nice gifts. Nothing like what Clarence Thomas has gotten, but he got a Rolex and his daughter's wedding was paid for, and his wife was flown to New York to go shopping on a private jet, and and all sorts of of nice things in exchange for opening the door to what would be the consummate kind of consumer product for Virginia. It's just a health supplement made out of tobacco, and the governor was prosecuted for corruption for making government agencies available to this benefactor.
And it ended up at the Supreme Court, which found that he could not be prosecuted because basically corruption really only involves, in this Supreme Court's view, at this point in time, somebody handing you a bag of cash and you giving them legislation in return. You know, I continue to think that this case really indicates the level of distance that these people live away from the rest of the world, that this doesn't qualify as corruption, and I think it helps explain a lot of why they think their own behavior is acceptable. Because, you know, Justice Thomas did not get a bag of cash — so far as we know, maybe ProPublica will tell us otherwise — but he did not get a bag of cash in exchange for writing a decision in favor of any of these benefactors, ergo, in their view, no corruption.
Alan: And just one last point I wanna make, and I speak here as a former public employee. Compliance with these reporting requirements is not rocket science, it's very straightforward.
If somebody offers you a gift or cash or additional income for any purpose, my experience was, when I was a public employee, anytime anyone offered me anything, I contacted the ethics office immediately and I erred on the side of disclosure. It's very interesting to me that every time there's been a problem with, for example, Justice Thomas, it's been erring on the side of non-disclosure, which at the very least is contrary to the entire theory behind these laws, which is transparency, the principle on which all of this is based.
The public needs to know who's getting what, so they know why decisions are being made. And if they don't, the credibility of the system erodes and eventually collapses.
Paras: Those are all great points and very true. Alan, Caroline, thanks so much for joining the show.
Caroline: It's been a real pleasure. Thanks for having us.
Alan: Agreed. Thanks.
Paras: The Just Security podcast is produced in partnership with NYU’s American Journalism Online program. AJO trains students to become world class journalists, no matter where they live or work. Find out more about AJO, and how you can apply, in our show notes.
This episode was hosted by me, Paras Shah, with co-production and editing by Tiffany Chang and Michelle Eigenheer. Our music is the song “The Parade” by Hey Pluto!
Special thanks to Clara Apt, Caroline Fredrickson, Alan Neff, Alex Kapelman, Ben Montoya, and Katie Rice. We’ll link to Alan and Caroline’s piece on Supreme Court ethics in the show notes.
If you enjoyed this episode, please give us a five star rating on Apple Podcasts, or wherever you listen.