WASHINGTON – As the Supreme Court was putting the finishing touches on the final opinions of the last term, Chief Justice John Roberts told an audience in May that the ethics scandals swirling around the court were an “issue of concern” and that the justices were “continuing to look at things” to address the problem.
Since then, the ethics woes have only worsened and Roberts has remained silent. As attention shifts to a new term that will begin this fall, some Supreme Court watchers have grown pessimistic that anything will change.
“Chances of something actually happening, I would say, are zero with no rounding error,” quipped Steven Lubet, an emeritus law professor at Northwestern University who has supported tighter ethical standards at the high court for decades. “I think if it was going to happen, it would have happened.”
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The debate over Supreme Court ethics may gain new attention in coming days as annual financial disclosure reports for Justices Clarence Thomas and Samuel Alito are released. Thomas, in particular, has been at the center of controversy involving private jet travel and luxury vacations paid for by a GOP megadonor.
Those disclosures for 2022 could provide new insight – and open new questions – about gifts offered to the justices. Thomas and Alito are the only two releasing financial details now because they were granted an extension to file their reports. It’s not clear whether Thomas will submit amended disclosures for past years covering the previously unreported travel that has been the focus of controversy.
What does seem clear, based on statements from the justices over the summer, is that there is little-to-no agreement on how to proceed. Congress, meanwhile, is unlikely for now to approve legislation Senate Democrats are pushing that would require a code of ethics at the court. Republican lawmakers have balked at the idea.
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Faith in the court has tanked in recent years. An Ipsos poll this week found that half of Americans have little or no trust in the justices and that faith in the Supreme Court has slipped below that of other legal institutions, including juries, local police and state judges. Only “corporate attorneys” fared markedly worse than the high court.
Roberts didn’t respond to questions about what, if any, progress had been made since his remarks this year.
“The Supreme Court has failed to rise to the occasion by refusing to do anything of substance to address the growing concern Americans have about its integrity,” said Gabe Roth, executive director of Fix the Court, which advocates for stricter ethical standards. “I’m putting my hopes in Congress” and the potential for future bipartisan support.
There was bipartisan interest in ethics changes at the Supreme Court in the past. But the fight has recently devolved into a partisan one, with Republican lawmakers accusing Democrats of hammering the issue as a way to undermine a court where conservatives hold a 6-3 advantage.
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Roberts, as always, chose his words on the issue carefully in May as he accepted an award in Washington.
“I want to assure people that I am committed to making certain we as a court adhere to highest standards of conduct,” Roberts said at an American Law Institute dinner. “We are continuing to look at things we can do to give practical effect to that commitment.”
Since then, the court has declined to provide clarity on what Roberts meant by “things we can do.”
Private jets, paid for by mega-donors and a hedge fund billionaires
At the time of Roberts’ speech, Thomas was under pressure following a series of stories in ProPublica that revealed private jet trips and luxury yacht travel he had accepted from Harlan Crow. The GOP megadonor also purchased property from Thomas and his family – none of which was reported on required annual disclosure forms.
Nearly a month later, Alito acknowledged that he flew to Alaska for a fishing trip on a private jet in 2008 that belonged to a hedge fund manager who repeatedly brought cases before the high court. Weeks later, the Associated Press reported that aides to Justice Sonia Sotomayor pressed colleges and a library to order copies of books she had authored in connection with public speaking events.
Alito and Thomas have both brushed aside the reports, saying they weren’t required to disclose their travel because of a “hospitality” exemption to the reporting rules. And in an op-ed this year in the Wall Street Journal, Alito said he had no obligation to recuse himself from cases involving the hedge-fund billionaire who paid for the travel.
Roberts doesn’t have the power to impose ethical standards on his own, and there are signs that there isn’t unanimous support for change among his colleagues. Speaking earlier this month in Portland, Oregon, Justice Elena Kagan said that “the nine of us have a variety of views about this − as about most things.”
“It’s a hard thing to get as much consensus as you can in the way that we like to do,” Kagan said, “but I hope that we will make some progress in this area of the kind that the chief justice talked about.”
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Speaking on Monday, Justice Amy Coney Barrett said that she welcomed scrutiny of the court, according to several media accounts, but she did not discuss the ethics controversies directly.
“Justices and all judges are public figures, and public criticism kind of comes with the job,” she said.
Barrett and the rest of the bench filed their financial disclosures in mid-May but Alito and Thomas sought extensions until mid-August. As they have in the past, the first batch of disclosures showed that several of the justices were reimbursed for travel to Europe or received outside income for teaching at law schools in 2022 – arrangements that have also come under scrutiny.
Advocates for greater transparency at the court said the reports are far from perfect, in part because it’s unclear how closely they’re being scrutinized internally for consistency with disclosure requirements in the law. Several of the justices have claimed that the law setting up the disclosures does not apply to the Supreme Court − because it is a separate branch of government − and that they are submitting the information voluntarily.
“How is that an ethics system? You can’t have a system of ethics that relies on self policing,” said Delaney Marsco, senior legal counsel for ethics at the Campaign Legal Center. “Other branches of government, to be clear, are not perfect…but they are miles ahead of the Supreme Court.”