About the Debate Over the US Supreme Court and Ethics: QuickTake

US Supreme Court Justice Clarence Thomas is under scrutiny for his acceptance of financial largesse from Texas billionaire Harlan Crow, following reports that he didn’t disclose tuition payments for his grandnephew’s private school, a property sale or lavish trips, all provided by Crow, a Republican donor. The Supreme Court sets its own rules as a co-equal branch of government and has no code of conduct, but ethics laws and rules that apply widely to the judiciary require the disclosure of gifts. The court’s constitutional independence means there’s little chance that Thomas will be sanctioned. Thomas’s defenders said the gifts didn’t need to be disclosed.

1. What are the accusations against Clarence Thomas?

Thomas’s ties to Crow were the subject of revelations reported by ProPublica. Among its findings were that Crow paid for at least a part of the private school tuition for Thomas’s grandnephew, who was raised by Thomas and his wife, Ginni. Crow also bought from Thomas’s family the Georgia home that Thomas’s mother lived in, and then spent tens of thousands of dollars making improvements to it. And Crow paid for lavish trips taken by Clarence and Ginni Thomas, using Crow’s private jet. After the trips were reported, Thomas said he was advised that he didn’t have to report “this sort of personal hospitality from close personal friends.” He added that Crow hadn’t had any business before the Supreme Court, though Bloomberg News later reported that the court in 2005 had denied to hear an appeal from a company that had sued a Crow-affiliated business. Thomas has said he intends to follow the Judicial Conference’s gift reporting guidelines in the future.

2. How about the other justices?

ProPublica reported in June that Justice Samuel Alito accepted travel to Alaska on a private jet in 2008 from hedge fund chief Paul Singer, who years later had business before the court. Alito denied any ethical lapses and said he saw no reason to recuse himself because he wasn’t aware that Singer had an interest in any of the cases. He also said that at the time he did not have to report the flight on his financial disclosure. Justice Ketanji Brown Jackson accepted a designer dress and jacket valued at $6,580 that she wore for a Vogue photo shoot last year, but she reported that gift on her yearly financial disclosure form released in June. She also disclosed having received a floral arrangement from talk show host and television producer Oprah Winfrey worth $1,200.

3. What ethical rules apply to Supreme Court justices?

Each branch of the US government is responsible for policing its own ethics, with some exceptions. The executive branch, which includes the White House, is subject to the Office of Government Ethics, whose director is appointed by the president and approved by the Senate. In the legislative branch, both the Senate and the House of Representatives have ethics committees that consider alleged violations by members. In the judicial branch, judges in federal district, appellate and bankruptcy courts have been guided by a code of conduct since the 1970s. But the Supreme Court isn’t subject to it. In his 2011 annual report on the judiciary, Chief Justice John Roberts said that the justices consult the lower courts’ code of conduct but that the Supreme Court had “no reason to adopt the Code of Conduct as its definitive source of ethical guidance.” Justice Elena Kagan said at a 2019 House hearing that a code specific to the Supreme Court was being “very seriously” considered. But no code has been proposed or implemented.

4. Could Congress do anything?

Theoretically, yes. The US Constitution gives Congress the power to impeach and remove a Supreme Court justice for bad conduct using the same process — charged by the House, tried by the Senate — that applies to US presidents. The only justice to have been impeached was Samuel Chase in 1804. He was accused of mishandling politically sensitive cases and charged by the House, but the Senate acquitted him after a trial. There’s almost no chance that today’s House would impeach Thomas: It’s controlled by Republicans, many of whom spoke out in defense of Thomas. On the legislative side, Democratic members of Congress have introduced a measure that would require the federal courts’ policy making bodyto enact a code of conduct that applies to the Supreme Court as well as to lower courts. Whether any such legislation would be constitutional isn’t clear, because any attempt by Congress to regulate the Supreme Court could be seen as violating the doctrine of separation of powers.

5. Could anyone else do anything?

There may be enough evidence for the Justice Department to launch an investigation into whether Thomas violated financial disclosure laws. The Ethics in Government Act of 1978 authorizes the attorney general to pursue civil enforcement actions, something the Justice Department has done in the past in cases where other officials violated their obligation to accurately disclose their finances, said Kathleen Clark, a Washington University in St. Louis School of Law professor who served as counsel to the Senate Judiciary Committee in 1991. Violators can face civil penalties as high as $50,000 per violation. In April, Senator Sheldon Whitehouse, Democrat of Rhode Island, asked the Judicial Conference in a letter to refer Thomas to the attorney general. The conference said it forwarded Whitehouse’s letter to its Committee on Financial Disclosure, which is responsible for implementing the law’s disclosure provisions and addressing allegations of errors or omissions in the filing of financial disclosure reports.

6. Any chance he’ll choose to resign?

There is precedent for such a turn of events. In 1969, Supreme Court Justice Abe Fortas resigned under the threat of impeachment after a magazine reported he accepted a $20,000 fee (equal to about $170,000 today) by the family foundation of a man being investigated for stock manipulation — returning it only after the man’s indictment. Fortas denied any wrongdoing but became the first and only justice to resign rather than face impeachment. The same fate isn’t likely for Thomas, 74, considering that all nine justices implicitly backed him in a letter Roberts wrote to the Democratic chairman of the Senate Judiciary Committee that defended the court’s ethical standards.

The Reference Shelf

• ProPublica’s investigations of Thomas’s ties to Crow.
• A look at Harlan Crow, Thomas’s billionaire friend, and his long history of political contributions.
• Chief Justice Roberts’s 2011 year-end report, on ethics and the Supreme Court.
• A biography of Thomas by Oyez, a clearinghouse of information about the Supreme Court.

To contact the reporters on this story:
Lydia Wheeler in Arlington at ldavenport15@bloomberg.net;
Kimberly Robinson in Arlington at krobinson103@bloomberg.net

To contact the editors responsible for this story:
Sara Forden at sforden@bloomberg.net

David S. Joachim

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