The U.S. Supreme Court is coming under increased pressure to adopt binding ethics rules amid revelations that at least two of its nine justices have failed to file full reports on their financial activities.
On Wednesday, a bipartisan duo of senators announced they would introduce legislation requiring the court to adopt a code of conduct, noting that the high court is the only element of the federal government — including lower federal courts — not covered by ethics requirements.
“A healthy democracy requires trust: trust in systems, trust in institutions and trust in leaders,” said Senator Angus King, an independent who caucuses with the Democratic Party. “Americans deserve to have confidence that every part of their government — especially the highest court in the land — is acting in an ethical manner.”
Senator Lisa Murkowski, a Republican, said, “The American public’s confidence in the Supreme Court is at an all-time-low. Americans have made clear their concerns with the transparency — or lack thereof — coming from the Supreme Court and its justices. It is critical the public has full faith that their institutions are functioning, including the judicial branch.”
Unreported gifts and sales
Criticism of the high court’s lack of a binding code of conduct has been a recurring feature of discussions of reform over the years, but the calls to establish ethical standards for its justices, who all serve life terms, intensified in recent weeks after a series of unflattering news reports.
Earlier this month, the news organization ProPublica revealed that Justice Clarence Thomas has for decades accepted lavish vacations from a billionaire conservative political donor named Harlan Crow. The trips included travel on private jets and a superyacht, and stays at various luxury properties around the world.
Thomas was appointed to the court in 1991 by former President George H.W. Bush and is considered its most conservative justice.
In response to the story about the vacations, Thomas said he believed he was not required to report accepting the hospitality of a personal friend. He acknowledged that recent changes to the court’s rules have made reporting such gifts a requirement and said he would disclose them in the future.
A subsequent news story, also from ProPublica, revealed that Thomas had failed to report a real estate transaction in which Crow purchased several properties from Thomas’ family. One property was the home in which Thomas’ mother lived. She continued to reside in the property after Crow purchased it and performed extensive renovations.
Focus on Gorsuch
On Tuesday, the news website Politico reported that in 2017, Justice Neil Gorsuch sold his interest in a Colorado vacation home to Brian Duffy, CEO of Greenberg Traurig, a large U.S. law firm that often represents clients in cases before the Supreme Court. Gorsuch was appointed to the high court by former President Donald Trump in 2017.
The home had been on the market for two years, and the sale went through just days after Gorsuch was sworn in as a member of the court. When he reported the sale in his financial disclosures in 2018, Gorsuch, a member of the court’s conservative majority, did not identify Duffy as the purchaser.
In media interviews, Duffy has denied that there was anything inappropriate about the transaction, saying he was not aware that Gorsuch was part owner of the property until he had already made the decision to purchase it. He said he has never met Gorsuch and does not practice before the high court.
As of Wednesday afternoon, Gorsuch had not commented on the sale or his decision not to identify Duffy as the buyer.
Because the revelations about reporting failures have implicated two of the court’s most conservative judges, some Republicans have suggested the stories are a left-wing effort to remake the court.
After the first stories about Thomas were released, Senator John Cornyn tweeted, “The left is furious it lost control of the Supreme Court, and it wants it back by whatever means possible. The latest effort is a smear on Justice Thomas.”
Roberts refuses to testify
The announcement of the new legislation came a day after Chief Justice John Roberts declined an invitation from Senator Richard Durbin, chair of the Senate Judiciary Committee, to testify at a May 2 hearing on ethical standards for the court.
In a letter to Durbin, Roberts said he would “respectfully decline” the offer to appear.
“Testimony before the Senate Judiciary Committee by the Chief Justice of the United States is exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence,” Roberts wrote.
The chief justice instead appended a five-page “Statement of Ethics Principles and Practices,” to which he said all nine justices currently subscribe.
Durbin said the scheduled hearing will proceed with or without a representative of the Supreme Court.
“I extended an invitation to the Chief Justice, or his designate, in an attempt to include the Court in this discussion,” he said in a statement. “But make no mistake: Supreme Court ethics reform must happen whether the Court participates in the process or not.”
Poor public perception
The push to force an ethics requirement on the court comes at a time when public perceptions of the body are at a low ebb. This week, a poll conducted by National Public Radio, PBS NewsHour and the Marist Institute for Public Opinion found that 62% of Americans said they have little or no confidence in the court. As recently as April 2019, that figure had been only 36%.
The same poll found that more than two out of three Americans — and majorities of Republicans and Democrats — believe that justices’ service on the court should be term-limited rather than a lifetime appointment.
Much of the recent change in attitude toward the court is likely attributable to its decision last year to overturn the nearly 50-year-old decision in Roe v. Wade, which had guaranteed women the right to have an abortion. The decision was deeply unpopular with a large majority of Americans and has led to numerous states enacting laws severely limiting access to abortion.
The court’s ideological makeup has also shifted sharply in recent years. During his four years in office, Trump was able to place three new justices on the court after two justices died and another retired. The result was a shift in the court’s makeup from a balance in which liberals enjoyed a small advantage to a firm conservative majority of 6-3.
Ethics key to public trust
Paul Finkelman, a legal historian and the Robert E. and Susan T. Rydell visiting professor at Gustavus Adolphus College, told VOA that the lack of an enforceable ethical code is damaging to public perceptions of the court.
“The credibility of the court, the ability of the court to be accepted by the American people, has to be based on high ethical standards,” Finkelman said. “But when justices have the obvious appearance of impropriety, it makes it very difficult for the American people to accept the decisions of the court.”
Finkelman said he believes Roberts’ refusal to engage with the Senate in a discussion on a code of ethics is an error, and that his arguments about the separation of powers are specious.
“If he comes before the Senate, he is not coming about litigation before the court. He is not coming about whether the court should be overruling an act of Congress,” he said. “It's not an issue of the separation of powers.”
Finkelman added, “I think Roberts is making a grave error.”
