Hear Ye: The Supreme Court Obviously Has To Follow An Official And strictly Enforced Ethics Code

Ethics Alarms has taken the position that Clarence Thomas’s unreported yearly luxury frolics with conservative power-broker Harlan Crow created a sufficiently substantial appearance of impropriety for Thomas to resign. I’ll hold to that; I don’t trust Thomas’s judgment or independence at this point, and I’m not even a dedicated Thomas critic. What has insulated Thomas, and, by extension, his colleagues, from having to respond to this scandal as seriously as they should is the fact that progressives, Democrats and much of the mainstream media have been trying to manufacture reasons for getting Thomas off the Court—he’s too conservative for them, his real crime in their eyes—since they dug up an old girlfriend of Thomas’s to ambush him during his confirmation hearings. This history, including efforts to use Thomas’s conservative activist wife as way to impugn Thomas (an approach that feminist leaders would condemn if they had any integrity themselves, which, sadly, they don’t), has made the whole issue appear to be a partisan weapon designed to wrest control of the Court. It is, but it also is legitimate, non-partisan problem of substantial import to the functioning of the government.

This week, Senate Democrats held a hearing focused on Supreme Court ethics. Chief Justice John G. Roberts Jr.and the other eight justices presented a united front, as he declined an invitation to testify, issuing a statement of their commitment to abide by “foundational ethics principles and practices.”

Well, to put it starkly, they don’t.

The Thomas-Crow revelations revived memories of this report in 2016 about how the late Justice Antonin Scalia took at least 85 all expenses paid and undisclosed hunting and fishing trips during his tenure on the court, often with prominent Republican donors, politicians, and those with business before the court. Since the initial ProPublica story regarding Thomas, more has been discovered. Crow also bought the home of Thomas’ mother and made tens of thousands of dollars of improvements to it. Crow also paid tuition for Thomas’ grandnephew to attend two private boarding schools, according to a statement released Thursday by a longtime friend of Thomas.’ Again, I don’t question that these matters are being pursued in part as a “get Thomas off the Court” effort by the Left, but they still raise serious ethical issues. Additionally troubling are the responses to the new information, like the spin Mark Paoletta, Thomas’s friend who confirmed the tuition story tried to put on those facts.

“This story is another attempt to manufacture a scandal about Justice Thomas,” Paoletta told ProPublica. “But let’s be clear about what is supposedly scandalous now: Justice Thomas and his wife devoted twelve years of their lives to taking in and caring for a beloved child — who was not their own — just as Justice Thomas’s grandparents had done for him. They made many personal and financial sacrifices to do this. And along the way, their friends joined them in doing everything possible to give this child a future.”

All of which is irrelevant to the importance of justices avoiding the appearance of impropriety and potential interference with their objectivity. Paoletta then argued that Thomas was not required to report the tuition payments “made directly to these schools” because Martin was not his “dependent child” as defined by federal disclosure law. Maintaining public trust is not something that can or should be approached using legal technicalities. Thomas took a similar tact regarding his vacations with Crow, explaining that he had been advised he didn’t need to disclose the luxury travel because it was “hospitality” and thus not covered by the exact language of the applicable rule.

Now another Thomas ethics controversy has arisen, described here, in the Washington Post. It’s too convoluted for me to summarize, and the Post’s statement that legal ethics experts disagree regarding the seriousness of episode doesn’t surprise me. Nonetheless, it is one more piece of evidence that the SCOTUS justices are not making an effort to embrace the highest standards of judicial ethics…as they should. Nor are the liberal justices doing any better: it’s just that the news media isn’t interested in exposing them. The sainted Ruth Bader Ginsberg, especially in her declining years, made little effort to appear objective and open-minded on many issues. This week, it was reported that Justice Sonia Sotomayor did not recuse herself from multiple copyright infringement cases involving book publisher Penguin Random House though the company had paid her millions for her books. If the facts cited by the Daily Wire are accurate, Sotomayor’s conduct is more egregious than accepting vacations fro politically interested patrons, because it involved specific cases. So far, the mainstream media hasn’t deigned to cover a serious ethics breach by one of its favorite justices; only conservative publications have published the story.

Gee. What a surprise.

I am confident, at this point, that if reporters investigated all of the justices currently on the Court and those who have gone on to that Big Bench in the Sky, we would find that Thomas and Sotomayor-style ethics violations are and have been frequent.

The Court needs clear, tight and enforceable judicial ethics rules.

It’s time.

10 thoughts on “Hear Ye: The Supreme Court Obviously Has To Follow An Official And strictly Enforced Ethics Code

  1. I’m beginning to think the Supremes really do think they are literally above the law … because … they ARE the law.

    • Which is surprising insofar as most of them worked their way up the ranks of the federal judiciary and operated withing judicial ethics parameters then. But maybe they are legalists and figure if there’s no ethics code binding them currently, they’re free to do as the damn well please. Power corrupts, and absolute power does you know what. A client had a case before the Seventh Circuit. During the oral argument, the arrogance of the head of the three-judge panel was absolutely palpable.

  2. Jack: “enforceable”


    As I see it, it is only really enforceable through impeachment proceedings.

    Is that what you have in mind?


    • No, except in extreme circumstances. A judicial panel could reprimand, sanction and otherwise discipline unethical Justices short of removing them. The Court could appoint it.

      • Isn’t this a toothless tiger.

        The panel would have to be part of the Judicial Branch under the Separation of Powers.

        And, it could not reduce their pay.

        Would the disciplinary results be purely symbolic?

        (Actually, symbolic might be enough to keep lower judges who aspire to higher positions in line, as the Senate could use it in confirmation proceedings. But, for the Supreme Court?)


          • Well, something to use to shame them, if fairly applied, certainly can’t hurt.

            Reading your post reminded me of a conversation I had with a new lawyer.

            She said she was taught that the Ethics Rules were considered the floor of acceptable behavior. You should aspire to be well above that.

            She was young; she probably knows better now.

            But, seriously, if Thomas had aspired to be well above the floor, he would have reported them, even if he thought he was not required to.

            But, lawyers being lawyers, they are risk averse: never admit something you don’t think you need to—it will always come back to haunt you


  3. Sorry but no. Aside from how I feel about Thomas did (I have a suspicion that if one goes looking, you’d find something similar with everyone of them—no one is talking about Katanji or whatever her name “fixing” her financial statements just ahead of confirmation). Ultimately I won’t give Dems/left this easy victory. SCOTUS is last line of defense, considering how much Dems rigged elections in many critical states, a conservative on SCOTUS is way too valuable to concede just to prove we’re “better” (just ask the Obamas how they went from broke ass to being worth over $100 mil)

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