LACK OF ETHICS AT THE SUPREME COURT AND IN THE FEDERAL JUDICIARY
There’s a lack of ethics at the U.S. Supreme Court, both in terms of the justices themselves and in the Chief Justice’s oversight of the federal judiciary. Unlike every other member of state and federal judiciaries, the Supreme Court's nine justices aren't subject to ethics rules or a code of conduct, not even the ones that govern the rest of the federal judiciary. Requests for them to subject themselves to those rules have fallen on deaf ears and efforts in Congress to impose ethical standards have gone nowhere.
The 1978 Ethics in Government Act, passed in the aftermath of President Nixon’s Watergate scandal, does require the justices to file annual disclosure statements of their and family members’ financial interests. Nonetheless, Justice Thomas had to amend 20 years of disclosure statements to indicate that his wife had received hundreds of thousands of dollars of income from the Heritage Foundation, a conservative think tank. He has repeatedly been criticized for not recusing himself in cases where he appeared to have a conflict of interest based on his wife’s financial interests. [1]
There also have been issues with conflicts of interest due to justices’ ownership of stock in corporations with business before the court. For example, in 2016, Chief Justice Roberts had two instances of such conflicts. In a case involving Microsoft, he disclosed well after that fact that he had sold over $250,000 of Microsoft stock in the year prior to hearing the case. He also participated in a case involving Texas Instruments while owning over $100,000 worth of company stock. He admitted after the fact that he should have recused himself on that case.
At least four current justices have book deals worth hundreds of thousands, if not millions, of dollars. Federal employment guidelines say that justices can’t accept more than $30,000 annually in outside pay. However, book income is exempt, but, nonetheless, it has potential conflicts of interest.
Nearly every justice has been questioned at one point or another on ethical issues such as appearing at partisan events or fundraisers, or accepting travel packages or other gifts. Justice Gorsuch just gave a speech at the annual conference of the politically active, powerful, conservative legal group, the Federalist Society. His speech was the only part of the conference program that was closed to the media. Without a code of conduct that indicates what’s appropriate and what isn’t, it’s up to each individual justice’s discretion (or lack thereof).
For the rest of the federal judiciary, the Chief Justice of the Supreme Court, John Roberts, has responsibility for overseeing its ethical standards and practices. Despite numerous examples of federal judges with conflicts of interest, in his year-end report on the federal judiciary Roberts argues for “institutional independence” and for the “Judiciary’s power to manage its internal affairs”. [2]
However, the evidence indicates that Chief Justice Roberts and the federal judiciary are NOT doing a good job of managing their internal affairs. In September, the Wall Street Journal reported that between 2010 and 2018, 131 federal judges improperly heard cases involving corporations where they or family members were shareholders. This is, of course, a violation of the conflict-of-interest rules for federal judges. Subsequent to the Wall Street Journal’s reporting, 136 judges have, after the fact, informed parties in 777 cases that they should have recused themselves because of a conflict of interest.
In response to these and other revelations, members of Congress have expressed interest in:
· Making all federal judges’ financial disclosure statements public (as they are for elected officials) so that conflicts of interest would be apparent,
· Imposing a code of conduct on the Supreme Court justices,
· Updating judicial ethics rules and disclosure requirements for all federal judges, including ones governing gifts, such as travel packages, and
· Imposing civil sanctions on judges who fail to recuse themselves when the judicial code of conduct requires them to do so.
The Roberts report’s only acknowledgement of the conflict-of-interest problems among federal judges is a statement that judicial ethics training programs need to be more rigorous. It also asserts that inappropriate behavior in the judicial workplace (presumably referring to multiple reports of sexual harassment and misconduct) can be addressed with expanded guidance and training.
Given the evidence of a variety of ethical problems at the Supreme Court and in the federal judiciary, Roberts’ call for judicial independence and autonomy sounds like an effort to avoid the standards, accountability, and transparency that would be put in place by a code of conduct for the Supreme Court Justices and by an enhanced code of conduct for the rest of the federal judiciary.
[1] O’Brien, T. L., 5/2/21, “Supreme Court’s ethics problems are bigger than Coney Barrett,” Bloomberg (https://www.bloomberg.com/opinion/articles/2021-05-02/supreme-court-s-ethics-problems-are-bigger-than-coney-barrett)
[2] Mystal, E., 1/24/22, “Roberts gets an F on his annual report,” The Nation (https://www.thenation.com/article/society/john-roberts-report/)