Do any ethics laws constrain the Supreme Court?
A look at the current legal landscape on Supreme Court ethics — and recent efforts to address the issue.
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The normally shadowy Supreme Court has been under the spotlight in recent weeks amid questions about several of the justices’ ethical standards.
ProPublica has reported extensively on Justice Clarence Thomas’ ties to billionaire Harlan Crow, including Crow treating Thomas to posh vacations, buying property from Thomas, and paying for Thomas’ adopted son’s private school tuition.
Other revelations have emerged about Justice Samuel Alito going on a luxury fishing vacation paid by a different conservative billionaire, Justice Sonia Sotomayor’s taxpayer-funded staff pressuring colleges and libraries to buy her memoir, and about the relationships wealthy donors have been able to cultivate with several of the justices through the secretive Supreme Court Historical Society.
This new reporting has led to Democratic calls for expanded ethics laws to cover the Supreme Court, efforts which are poised to gain steam in the next week. The Senate Judiciary Committee is set to meet on July 20 to vote on a Democratic proposal requiring the court to adopt a code of conduct, which will mark the first time the panel has considered such legislation.
Additionally, the Washington Post reported this morning that Senate Democrats will also attempt to push the Supreme Court in another way: by using the annual appropriations process and Congress’ “power of the purse.”
According to the Post, at a Senate Appropriations Committee meeting today to consider the annual spending bill that funds the Supreme Court, Sen. Chris Van Hollen (D-MD) plans to raise an amendment that would witthold $10 million from the Supreme Court’s budget until the court adopts a code of ethics.
Such an aggressive spending maneuver is not expected to pass — it doesn’t even have unified Democratic support — but even Van Hollen introducing the proposal marks a significant escalation in the brewing conflict between Democratic lawmakers and the nation’s highest court.
This entire discussion has naturally raised questions about which current ethics laws — if any — apply to the Supreme Court, and whether they allow the justices to effectively act with impunity. Several of you have pinged my inbox with questions to that effect; I’d like to answer two of them today, to give you a factual starting base for where the law stands as the SCOTUS ethics debate picks up.
Let’s start here:
Jed S. asks: “Other news sources have been saying Supreme Court Justices are above the law. You say Justices — thus Thomas — must report any sales above $1,000. What are the facts?”
This question was in response to the newsletter in which I reported on the Thomas-Crow real estate purchase, and noted that Thomas may have violated current law by failing to disclose it.
This is true: the law here is the Ethics in Government Act of 1978, a post-Watergate measure which requires government officials — including the president, members of Congress, and Supreme Court justices — to file annual financial disclosure reports.
If you want to look for yourself, Title III of the law — which starts on page 28 in this link — applies to the judicial branch. Section 302 lists everything members of the judiciary must disclose in their annual reports, including:
Any outside income.
“Any gifts of transportation, lodging, food, or entertainment aggregating $250 or more in value.”
Any other gifts with at least a $100 value.
Any stocks, bonds, or other investments worth at least $1,000.
“Any purchase, sale, or exchange” of “real property” (other than “property used solely as a personal residence of the reporting individual or his spouse”) that exceeds $1,000.
There are other requirements too, but I’ve included the ones most relevant to the recent reporting on Supreme Court justices. Note also that the justices are explicitly included under the law’s auspices: Section 302 applies to “judicial officers,” which is defined as including “the Chief Justice of the United States” and “the Associate Justices of the Supreme Court.”
Under the Courthouse Ethics and Transparency Act of 2022, which President Biden signed into law last year, the justices’ financial disclosure reports must be made available online. A searchable database is here; SCOTUSBlog also maintains a compendium here, which makes it easy to see any of the justices’ annual reports if you would like to do so.
Before we go any further, it should be noted that some of the reporting requirements listed above do come with exceptions. The requirement for disclosing “gifts of transportation, lodging, food, or entertainment,” for example, includes an exemption for gifts of “personal hospitality.”
Justices Thomas and Alito have both argued that the trips they received from their billionaire friends fell under the “personal hospitality” exception. (Thomas’ statement is here. Alito’s Wall Street Journal op-ed on the matter is here.)
Under the 1978 law, the Judicial Conference of the United States — the judicial branch’s somewhat obscure policymaking body — is empowered to oversee compliance with the measure. Interestingly, the Judicial Conference updated its guidelines in March to clarify that “personal hospitality” only applies to stays at someone’s “personal residence,” not trips to hotels, ski lodges, or other commercial properties. This specification only just went into effect this year, meaning it did not apply when Thomas and Alito went on their past trips.
However, the requirement to disclose real estate sales does not include any such exception: it only exempts disclosure of sales to a spouse or dependent child, which Harlan Crow obviously is not to Clarence Thomas. The failure to disclose the real estate sale, then, would appear to be a much more clear-cut violation of the Ethics in Government Act reporting requirements. (As noted above, the law exempts sales of “property used solely as a personal residence” for the justice or their spouse. Thomas’ mother, not Thomas, lived in the house he sold to Crow.) Unlike the story on luxury travel, Thomas did not respond to ProPublica’s requests for comment on the real estate story.
If you’ve made it this far, you’re probably wondering if the Ethics in Government Act includes any provisions ensuring compliance, or whether it’s a more toothless piece of legislation without any enforcement capability.
In fact, there actually is language in the law that allows it to be enforced, at least civilly. Under Section 304, the Attorney General is empowered to “bring a civil action in any appropriate United States District Court against any individual who knowingly and willfully falsifies or who knowingly or willfully fails to file or report any information that such individual is required to report pursuant to section 302.” A civil penalty up to $5,000 can be levied if an individual is then found by a court to have violated the law.
Obviously, it would be an enormous and unprecedented action for the AG to move forward with such a civil complaint against a Supreme Court justice, but it is technically possible under the law. As for criminal sanctions, under 18 U.S. Code § 1001, lying or concealing information on a federal form is punishable by up to five years in prison.
That provision has been used to charge government employees — although never Supreme Court justices — for lying on their financial disclosure forms in the past. Most recently, that was one of the crimes Rep. George Santos (R-NY) was charged with; the Ethics in Government Act of 1978 was mentioned in his indictment.
Now, to briefly turn to the other question I’d like to address:
Heidi R. asks: “If the three branches of federal government are supposed to provide checks and balances for each other, why are the Supreme Court Justices allowed to effectively self-govern their own ethical standards? Is there an Inspector General that reviews SCOTUS conduct?”
First off, to answer the second part of this question: No, the Supreme Court has no inspector general akin to the IGs appointed for many executive branch agencies, who act independently of agency leadership and investigate employees to ensure compliance with ethics laws.
The closest thing would probably be the Judicial Conference, which I mentioned earlier. Under the Ethics in Government Act, it is the job of the Judicial Conference to refer potential judicial branch violators to the Attorney General. (Democratic lawmakers sent a complaint to the Judicial Conference earlier this year requesting that the panel consider a referral concerning the Thomas-Crow real estate deal.)
However, the Judicial Conference is chaired by the Chief Justice and composed of other federal judges — who are, constitutionally, the Supreme Court’s underlings — so the body can hardly be considered independent. Bills have been proposed in Congress to create an Inspector General of the Federal Courts, but nothing has ever been passed.
The first part of Heidi’s question is a bit thornier. Yes, under our system, the three branches of government are supposed to “check and balance” each other, something I brought up in my piece last week about Congress and the Supreme Court. But those checks and balances are more obviously supposed to apply to the decisions of each branch, with some level of “veto power” given to each branch over legislation, orders, or rulings put forward by the others.
The inner workings of each branch are generally left to the branches themselves. There is a well-established norm of the judicial branch letting Congress police its own members — courts historically decline to get involved in disputes over lawmakers being expelled or fined by their colleagues — and the Supreme Court has asked Congress to extend it the same courtesy.
Here, another principle of our constitutional system — separation of powers — butts up against the related, but sometimes contradictory, principle of checks and balances.
In fact, the Supreme Court has questioned in the past whether some of the laws Congress has passed that apply to the court — such as the Ethics in Government Act of 1978 — are possible violations of separations of powers. Yes, the justices do annually file the disclosure reports required by the law, but Chief Justice John Roberts has suggested they do so more or less voluntarily.
“Congress has directed Justices and judges to comply with both financial reporting requirements and limitations on the receipt of gifts and outside earned income,” Roberts wrote in a 2011 report. “The Court has never addressed whether Congress may impose those requirements on the Supreme Court. The Justices nevertheless comply with those provisions.”
In the same report, Roberts said that Supreme Court justices voluntarily “consult” the Code of Conduct for United States Judges — a code of ethics adopted by the Judicial Conference — when making ethical decisions. However, the code only explicitly applies to lower court judges, not to Supreme Court justices.
That brings us back to where we started. Next week, when the Senate Judiciary Committee convenes to consider Supreme Court ethics, they will vote on the Supreme Court Ethics, Recusal, and Transparency Act. The bill would require the court to publicly issue a code of conduct within 180 days, while also setting up a procedure for the court to receive complaints about justices allegedly violating the code.
Democratic lawmakers will likely argue at next week’s meeting that such a bill upholds the value of checks and balances; Republican lawmakers will respond that it is a violation of separation of powers. As mentioned, the Supreme Court has never ruled on the legality of proposals regulating its own conduct, meaning this entire conversation plunges our constitutional system into new, uncharted waters.
Corrections.
In yesterday’s newsletter, I incorrectly reported comments by Sen. Tommy Tuberville (R-AL). Tuberville told reporters on Tuesday that “white nationalists are racists.” The day before, when a CNN anchor said that exact statement to him in an interview, Tuberville had responded: “That’s your opinion.”
More news to know.
Chinese hackers gained access to Commerce Secretary Gina Raimondo’s email account as part of a broader Microsoft cyber breach in May.
The Secret Service has ended its investigation of the cocaine found at the White House without identifying a suspect.
Chris Christie says he has notched the 40,000-donor threshold needed to qualify for the Republican presidential debate stage.
Sen. Joe Manchin (D-WV) is set to headline an event in New Hampshire sponsored by No Labels next week, spooking Democrats who are worried that Manchin will mount a third-party bid backed by the group in 2024.
Ray Epps, the Arizona man who has figured prominently in right-wing conspiracy theories about January 6th, is suing Fox News and Tucker Carlson for defamation.
“These are not serious people,” Sen. Mitt Romney (R-UT) said Wednesday of House Republicans seeking to expunge former President Trump’s impeachments, quoting Logan Roy of “Succession.”
After years of depleting their early voting numbers by equating mail-in voting with fraud, Republicans have made a reversal and are now urging their voters to cast their ballots early.
The day ahead.
President Biden is in Helsinki, Finland, for the U.S.-Nordic Leaders' Summit. He met earlier this morning with President Sauli Niinistö of the Republic of Finland and held a larger meeting with the other Nordic leaders. Later today, he will hold a joint press conference with Niinistö before returning to Washington, D.C.
First Lady Jill Biden will deliver remarks on workforce training programs at the National Governors Association (NGA) annual meeting in Atlantic City, New Jersey.
The Senate will vote to confirm Kalpana Kotagal as a member of the Equal Employment Opportunity Commission.
The House will continue consideration of the National Defense Authorization Act for Fiscal Year 2024, the annual defense policy package. Passage of the measure could be complicated by the inclusion of several right-wing amendments.
Before I go...
Let’s end with something lighter. St. Louis’ NBC affiliate KSDK reports:
In the quiet countryside at Waterloo, Illinois, lies a hidden sanctuary that holds a remarkable power to heal and transform lives. Welcome to Dude’s Playground, a haven where disabled veterans discover solace, friendship, and a flicker of hope amidst nature's embrace.
Dude’s Playground was established by Richard Melching, a former soldier who was driven to despair after returning from his service. Named for his dog “Dude,” the retreat offers a refuge for fellow veterans in similar situations.
Dude’s Playground offers a range of leisure activities, from fishing in tranquil waters to embracing the camaraderie reminiscent of their military service. Veterans find solace in unloading their burdens within the sanctuary’s safe haven, allowing wounds — both seen and unseen — to heal.
Read more via KSDK. Thanks to reader Sean L. for sending in this story. If you see a lighter news story that you think should be featured in this section, send it my way at gabe@wakeuptopolitics.com.
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