Photograph by Nathaniel St. Clair
Following revelations by ProPublica in April that Justice Clarence Thomas failed to disclose lavish private trips funded by a Texas billionaire and other controversial financial arrangements, many lawmakers are rightly calling for the Supreme Court to adopt more stringent ethics regulations.
Following the scandal, the nine justices in the court signed a “Statement on Ethics Principles and Practices” vowing to follow general ethics rules and regulations that all other federal judges are bound to. However, the new ethics declaration falls short of establishing a formal code of ethics that is constitutionally binding and specific. This is a mistake.
The Supreme Court is the only court in the country without an official code of conduct. In fact, it is the only federal agency without formal ethics standards. Instead, according to the justices’ Statement, justices “consult a wide variety of authorities to address specific ethical issues,” including judicial opinions, treatises, scholarly articles, disciplinary decisions, and the historical practice of the Court and the federal judiciary.
However, it is important to remember these sources are merely advisory and are therefore open to significant individual interpretation. The absence of an enforceable code of conduct to govern Supreme Court justices is underscored by Justice Thomas’s questionable behavior––behavior that could only have flourished in a system with no transparent enforcement mechanisms.
According to the ProPublica allegations, Justice Thomas frequently boarded private jets chartered by real estate magnate Harlan Crow, a well-known Republican mega-donor. The Texas billionaire extended significant “personal hospitality” towards the justice and his family, inviting him on lavish trips to the Adirondacks and Indonesia, and even going so far as to purchase the home of the justice’s mother in Savannah and paying for two years of private-school tuition for Thomas’s grand-nephew, over whom the justice has legal custody and is “raising as a son.”
Nowhere were these gifts reported in Thomas’s financial statements.
Although justices are not legally required to adhere to standards set up by the Judicial Conference—the national administrative arm of the U.S. judiciary—still, they have an ethical obligation to abide by those standards. This means disclosing financial statements, following laws governing the recusals of justices, and disclosing information concerning gifts to federal employees.
This means that while Thomas was exempt legally, he neglected his ethical obligation by failing to disclose his financial ties to Crow, the sale of the Savannah property, and the donor’s tuition payments.
However, rules regarding travel and what is considered “personal hospitality” are much more murky, and there are even fewer restrictions on what gifts justices may accept—a stark contrast to the strict prohibitions placed on members of Congress.
Standards for recusals are also vague, and the decision to excuse oneself from any proceeding involving a potential conflict of interest is ultimately up to each justice and does not require public explanation. Thomas, for instance, failed to recuse himself from the Jan. 6 case despite his wife’s involvement in efforts to overturn the 2020 election—a decision that generated much public outcry but was ultimately legal since justices are not covered by ethics rules.
And while justices do claim to subscribe to Judicial Conference guidelines and statutes on a voluntary basis, the Conference ultimately possesses no supervisory authority over the court––a fact the justices made clear in their signed statement.
This can all be traced down to the absence of a formal code of ethics. As the highest court in the land, the Supreme Court has a duty to lead by example. If the court is to maintain its integrity in the eyes of the American people, the justices should voluntarily adopt stronger ethics rules. That means at the very least imposing ethics standards like the ones already in place among lower courts.
Even better, the justices should form a judicial ethics committee or establish an independent oversight panel to ensure institutional impartiality and hold their colleagues accountable for ethics violations.
The American people deserve transparency and accountability from the Supreme Court. Tightening judicial ethics rules would be a good start.
