Responsibility is on justices to act in a way that increases public trust says URI professor
A recent investigative report by the nonprofit media outlet
ProPublica revealing that for more than two decades U.S. Supreme Court Justice
Clarence Thomas accepted gifts in the form of lavish trips from conservative
Dallas businessman Harlan Crow has renewed concern over potential conflicts of
interest and ethical lapses on the nation’s highest court.
The controversy has raised multiple calls for
investigation, the introduction of new ethics legislation that would govern the
court and even the specter of impeachment during a time in which the court is
seeing record low approval numbers. A Gallup poll released in September found that only
47 percent of Americans stated they had “a great deal” or “a fair amount” of
trust in the judicial branch of the federal government that is headed by the
Supreme Court – a drop of 20-percentage-points from 2020.
URI Professor of Political Science Christopher Parker notes that while Thomas is not
the first justice to accept such gifts, the latest revelations – on the heels
of last year’s leaked Dobbs decision overturning Roe v. Wade and Senate
Republicans playing hardball over judicial appointments in recent years – are
likely to deal yet another blow to the high court’s legitimacy. His research
involves analyzing the role of the law, politics, and ideology on the
decision-making of the U.S. Supreme Court and the American court system.
Below, he discusses Supreme Court ethics, rules around
disclosure, how the recent revelations are likely to impact the court, and
what, if anything, is likely to change.
What is the Ethics in Government Act of 1978? Does it apply to the U.S. Supreme Court? Did Justice Clarence Thomas violate the law by failing to disclose trips and gifts?
The Ethics in Government Act was a law passed in the wake
of the Watergate Scandal that requires public officials in the federal
government to disclose the financial and employment histories for themselves
and their immediate families. Each branch of government has the discretion to
create its own disclosure rules, and the rules for the judiciary have long been
far less stringent than those for the executive and legislative branches.
Justices are required to report gifts, but not instances
of “personal hospitality,” such as when they stay with friends. Justice Thomas’
trips could plausibly fall under this personal hospitality exemption, though
perhaps not his use of Harlan Crow’s private jet. The judiciary recently
revised its disclosure rules requiring that justices report these types of
gifts moving forward, but it does not apply to Justice Thomas retroactively.
However, new reporting suggests that Justice Thomas also
sold property he owned but did not live in (including the house his mother
lives in) to Harlan Crow and did not report those transactions. Justices were
required to report these types of transactions even under the old disclosure
rules, so if the reporting is accurate, it would seem Justice Thomas did
violate the law in those instances.
Is Thomas the first justice to accept such gifts? What,
if anything, makes this behavior different than that of other justices?
Given the personal hospitality exemption for reporting we
don’t know exactly how common these types of gifts are, though Justice Thomas
is certainly not the first justice to go on lavish vacations with friends
without having to pay for them. For example, when Justice Antonin Scalia died,
he was staying as a guest at a hunting ranch in Texas, a trip he regularly took
throughout his time on the court.
The number of trips Justice Thomas is reported to have
taken seems larger than other justices, but again, disclosure of these trips
has not always been required. However, this is not the first time that Justice
Thomas has been accused of violating disclosure rules (for example, he has
failed to report his wife’s income in the past), so many people will not give
him the benefit of the doubt other justices may get.
Why isn’t the Supreme Court subject to the same code of
conduct as the rest of the federal judiciary?
The Supreme Court has argued that because it has a small
number of justices and is the court of last resort it should not be held to the
same standards of recusal as the rest of the judiciary. Frequent recusals may
lead to situations where the court is left evenly divided and unable to settle
important legal questions, so justices are trusted to determine for themselves
when there is a sufficient conflict of interest to justify recusal.
Democrats on the Senate Judiciary Committee have promised
a hearing to look into the Supreme Court’s ethical standards while also urging
Chief Justice John Roberts to undertake an investigation into Justice Thomas’
undisclosed gifts. What do you see coming out of this?
It’s possible this motivates the Supreme Court to further
tighten disclosure requirements or create a stronger code of ethics for
justices, but there are not likely to be significant repercussions for Justice
Thomas. Democrats could attempt to impeach him, but given Republican control of
the House, a narrow Democratic majority in the Senate, and the polarization
over judicial appointments, any attempt to do so would almost certainly fail.
Prosecution under the Ethics in Government Act could result in a fine, but that
also seems unlikely, at least in terms of the vacations. The failure to report
the property sales could change things, but attempting to prosecute a Supreme
Court Justice, particularly in the current political climate, is a fraught
business.
How do revelations such as these impact trust in the
court and our institutions? Is there a solution?
These revelations will likely deal another blow to the
court’s legitimacy. While Harlan Crow has not been a party in a case decided by
the court, there are clearly cases the court has decided in which his real
estate business and his positions in conservative interest groups would give
him an interest in the outcome. So, many Democrats are likely to see these
trips as an example of a wealthy conservative activist trying to influence the
decisions of a justice. Opinions of the court have already become more
polarized in the wake of Republicans in the Senate playing hardball over
appointments and the decision to overturn Roe v. Wade, so this
is likely to exacerbate the issue.
Unfortunately, there is no clear solution to increasing
trust in the judiciary. Our system of separation of powers limits the ability
of other branches to govern the behavior of the Supreme Court, so the
responsibility is on the justices to act in a way that increases public trust.
Impeachment or broader structural reforms of the court (such as creating term
limits) are theoretically possible, but as mentioned these possibilities are
non-starters given the current partisan polarization surrounding the judiciary.
