Our Supreme Court Ethics Conundrum
And four remedies.
August 31, 2023
This summer, our media has been largely consumed with Donald Trump’s legal troubles. But he’s not the only story in town. Apparently, some Supreme Court justices have taken “gifts” from wealthy people with business before the court.
We can fix it.
In 2022, Justices Samuel Alito and Clarence Thomas took various gifts and multiple trips for vacations, conferences, etc. from billionaires involved in cases before the Court. They didn’t report any of them – until last week – after a huge public outcry about their lack of ethics.
We don’t know whether any – or how many – of the other eight justices engage in similar bad behavior.
THE SITUATION
Most of the public wants Congress to impose an ethics code on the Court. The National Constitution Center says that Congress can’t do that because the Constitution doesn’t specifically permit it.
Alito noisily claims that obedience to ethics rules is strictly voluntary.
But according to the Brennan Center for Justice:
“The list of recent unethical conduct by Supreme Court justices and members of their families is long. It includes repeated failures by Justices Clarence Thomas and Samuel Alito to disclose lavish gifts from billionaires with ties to right-wing legal organizations, failures by nearly all of the justices to recuse themselves from cases in which they had financial connections to the litigants, and justices’ spouses benefiting financially from law firms and nonprofit groups with business before the Court.
This brazenly unethical conduct, and the justices’ years-long refusal to take voluntary steps to prevent further abuses, points to significant shortcomings in the longstanding statutory framework Congress has created to regulate Supreme Court ethics."
ETHICS CODE
Congress adopted an ethics code for all federal judges in 1973. It’s been revised several
times, and now applies also to all federal court staff, prosecutors, and public defenders.
It doesn’t include the nine Supreme Court justices because many public officials, including
current Chief Justice John Roberts, claim that Congress lacks the power to impose any
such thing on the Court. But there are plenty of calls for one now.
Politico reported Justice Elena Kagan’s position in early August:
“It just can’t be that the court is the only institution that somehow is not subject to checks and balances from anybody else. We’re not imperial.” Kagan told the audience of judges and lawyers attending the Ninth Circuit Judicial Conference. “Can Congress do various things to regulate the Supreme Court? I think the answer is: yes.”
Congress enacted the Ethics in Government Act in 1978, requiring Supreme Court justices to report certain aspects of their finances. So why don’t Thomas and Alito think that “gifts” of recreational vehicles, cruises, yachts, etc. count as financial aspects?
LEGALITIES
The Supreme Court is not supreme. We have four potential remedies:
1. The Elastic Clause
Enact a Supreme Court Ethics Code. The Constitution’s Elastic Clause gives Congress the power to impose an ethics code. It’s called the elastic clause because it stretches to give Congress just about any power that the Constitution does not specifically prohibit. Article I, Section 8, Clauses 1 and 18:
"The Congress shall have Power to … provide for … the general Welfare of the United States … And to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
“General Welfare” means that Congress has the power to make any laws that it believes to be in the best interest of the United States. And it has the power to make any laws “necessary and proper” to implement those laws.
Surely an ethical Court, with appropriate remedies for violations, is in our best interest.
Some note that if Congress did adopt a code, the Court would just declare it unconstitutional.
They can’t declare any part of the constitution “unconstitutional”. That’s not a thing.
2. Ethics Charges
File formal ethics charges against justices who fail to report valuable “gifts”, which may in fact be bribes.
3. Impeachment
The Constitution’s Article III, Section 1 says:
”… The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour….”
So if the justices misbehave, Congress can impeach them, as per Article II, Section 4:
“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
Bribery is a crime. If a justice is impeached and convicted, s/he is fired.
That’s a big incentive to accept an ethics code.
4. Defunding
Article I, Section 9, Clause 7 gives Congress control over all money spent by the federal government.
So while Article III requires that the justices be paid, Congress can stop paying for support staff, office supplies, equipment, utilities in their building, toilet paper, cleaning supplies, etc.
That’s drastic, but so is a court hampered by justices who are beholden to rich guys.
PENDING LEGISLATION
To date, six Supreme Court ethics bills – three in the House of Representatives and three in the Senate – along with two House Resolutions have been introduced in Congress and referred to the respective Judiciary Committees. The Senate Judiciary approved one, but there is little hope that it will pass a full Senate vote. So far, the Committees have ignored the others.
A STRATEGY
In a 2001 West Wing episode, character Leo McGarry told his staff that the Boston Celtics’ Coach Red Auerbach told reluctant player Bill Russell to “throw an elbow” in a game to send a message to opponents who were beating him up on the court. Reports vary, but some version of that did happen in real life.
When we’re harassed and tormented by relentless opponents, we can throw a virtual elbow.
Congress can:
- Impose an ethics code,
- delete their operating budget,
- file formal financial ethics violation charges,
- and start impeaching justices.
I recommend that we lobby for all four things simultaneously.
And you can do just that.
Lobby hard. Americans have never won a thing from Congress without serious lobbying.
They’ll get the message.
UPDATE: November 13, 2023
The Court released its brand new Code of Conduct today.
You can read it at the link below.
Some observations:
1. There is no provision for enforcement. So when SCOTUS business continues as usual, they'll still get away with it.
2. However, the constitution's Article III states that justices " ... shall hold their Offices during good Behaviour ...."
3. So now it's easier for Congress to impeach justices when it becomes necessary.
https://www.supremecourt.gov/about/Code-of-Conduct-for-Justices_November_13_2023.pdf
FOR MORE INFORMATION
Read the Constitution
Pro Publica: Clarence Thomas
NBC News: Justice Clarence Thomas discloses trips paid for by billionaire Harlan Crow
NPR: Justice Thomas gifts scandal highlights 'double standard' for ethics in government
National Constitution Center: Why the Supreme Court isn’t compelled to follow a conduct code
Slate: Samuel Alito Inadvertently Made the Best Case for Supreme Court Ethics Reform
Brennan Center for Justice: Congress Has the Authority to Regulate Supreme Court Ethics – and the Duty
United States Courts: Code of Conduct for United States Judges
Congressional Powers and the Elastic Clause
Politico: Kagan Statement
Pending Congressional legislation on Supreme Court ethics
The West Wing: On the Day Before
Why We Need More Lobbyists
Learn to Lobby
Contact Pat for email notice of all new Community Matters articles.
Patricia A. O'Malley
Social Policy & Programs Consulting ~ Community Matters
412-310-4886 ~ info@patomalley-consulting.com
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