The imperative need for an ethics code for Supreme Court justices

The revelations about Justice Clarence Thomas accepting lavish vacations and not disclosing them are just the latest demonstration that it is imperative that there be an ethics code for Supreme Court justices and a method of enforcing it. Time and again, Thomas has flouted basic principles of legal ethics and yet nothing is done about it. This unnecessarily undermines the Supreme Court's legitimacy and it is long overdue to apply judicial ethics to the justices.

ProPublica revealed that Thomas has been accepting lavish luxury trips from Republican donor Harlan Crow for more than two decades. The report revealed that Thomas has regularly taken summer vacations at Crow's private lakeside resort in New York's Adirondacks and trips on his private jet and superyacht. The report revealed that an Indonesian vacation in 2019 that Thomas and his wife, Ginni, went on with Crow could have cost more than an estimated $500,000 if Thomas had chartered the yacht and plane himself, according to the report.

The day after the ProPublica story, Thomas issued a statement in response to these revelations admitting he had taken the trips without disclosure, but said: "Early in my tenure at the Court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable." This is stunning because judges at all levels know that they need to disclose the things of value that they receive.

This is not the first time Thomas has failed to comply with financial disclosure requirements. Justices are required to disclose their spouse's income. Over a decade ago, Thomas had for several years checked a box saying "none" in a section of his disclosure that asked for information about "spousal noninvestment income." But during this time, from 2003 to 2007, Ginny Thomas was paid $686,589 by the conservative Heritage Foundation. Thomas said that he did not disclose this because he misunderstood the form, an answer that was risible given the clear question being asked.

Other ethical issues have arisen as well. Jane Mayer wrote a detailed article in The New Yorker describing Thomas participating in cases where his wife had a financial interest. And Ginny Thomas was very involved in efforts to keep Donald Trump in power, including many texts to White House Chief of Staff Mark Meadows. This is troubling because in January, the Court considered Trump's effort, based on executive privilege, to block the release of documents to the House Select Committee investigating the January 6 insurrection. The Court ruled 8-1 against Trump. The only dissenter was Clarence Thomas.

Of course, this is not just about Thomas, though his pattern of flouting elemental ethical standards is deeply troubling. Several steps should be taken to help ensure that there is both the perception and the reality of a Court complying with the highest ethical standards. First, the ethical standards applied to lower federal court judges should be applied to Supreme Court justices. With the exception of a few laws, the laws regulating ethics that all other federal court judges must follow are not applicable to the justices. There is no justification for this omission.

Second, no longer should it be left to each justice to decide for himself or herself whether to participate or be recused in a case. Now, if a party requests that a justice be disqualified, it is entirely up to that justice whether to do so. It should be axiomatic that a justice should not be ruling on his or her own disqualification.

A simple alternative procedure would be to have the recusal of a justice decided by the other eight justices, or to choose three other justices at random to rule on any motion that a justice be recused. Of course, there is a danger that the justices will simply defer to one another. But I would expect that the justices would take this responsibility seriously. No matter what, it is better than the current system. Another possibility would be to have a panel of retired federal court of appeals judges decide recusal issues for the justices. But however it is done, creating such a procedure is essential. Having ethical standards is meaningless if there is no way of enforcing them.

Finally, if a justice is disqualified from a case, a procedure should exist whereby a retired justice (if one or more is alive and capable of serving), chosen at random, can participate as a justice instead. Justices say they are reluctant to recuse themselves because of the risk of leaving the Court evenly divided on an important issue. This can be addressed by allowing a retired justice to participate in those circumstances.

Ideally, these steps would be done by the Court on its own. It can adopt an ethics code and a recusal process without needing legislation. But if the justices do not act, Congress should enact a law implementing these reforms. It no longer should be that the weakest ethical standards apply to the most important judges in the country.