If truth be told

Chief Justice John Roberts has taken it upon himself to explain that SCOTUS, unlike every other court in the U.S., has not found it necessary to adopt a Code of Conduct as its definitive source of ethical guidance. Observers ever since have ineffectively demanded that SCOTUS join all other courts in the country and adopt a set of written ethics rules. As it stands now, it would probably have no meaningful effect on the justices who need it most.

Over the years, Justice Clarence Thomas, in particular, has accumulated a plethora of excuses defending why the rules do not apply to him. It seems he knows something that has escaped the rest of us.

For decades, Thomas violated the disclosure requirements of the federal Ethics in Government Act regarding his spouse's employment, and he continues to flout the rules. As revealed in investigations by ProPublica and the Associated Press, among others, Thomas withheld information about his multiple luxury vacations financed by billionaires; receipt of other lavish gifts; engaged in a questionable real estate transaction; and in his acquisition of certain financial assets. Even when Thomas broadened his disclosures, it appears he mischaracterized "gifts" in a way that it allowed him to conceal their value.

The litany of rationales, from Thomas or his apologists and assistants, cover misconduct extending over 30 years. Rationales that range from improbable to contrived: as if it was all just personal hospitality that's exempt from reporting; somebody once told him he could do it; other justices did it, too; he misread an instruction or misinterpreted a different one; the gift was actually for someone else; or, his views are so settled that they cannot possibly be affected by the billionaires' largesse even though never discussed earlier. In effect, the laws affecting the rest of us do not apply to Thomas and his colleagues because they are special and not like the rest of us.

The Code of Conduct for United States Judges, applicable to the lower federal courts since 1973, prohibits judges from any participation in fund raising activities - especially for political organizations. SCOTUS remains without such a code. A majority of justices historically appear to have unilaterally and informally settled on a looser prohibition only if attendees are solicited for money. That permissive standard would explain Thomas' not-so-discrete presence at such events. In the words of one Stand Together employee, they are "giving donors access and giving them a reason to come or to continue to attend in the future." Stand Together claims to be an American philanthropic organization first established in 2003 and is often referred to as the "Koch Network" - a conservative oriented political group.

Even if Thomas can find his way past the rules against politics and fundraising, there is no possible excuse for nondisclosure under the Ethics in Government Act. The philanthropic Stand Together community has undercut any claim of non reportable social hospitality questioned by ProPublica about Thomas' appearance at the 2018 funders' summit. Stand Together issued a statement explaining that he had attended the event to "give dinner remarks, as all the justices do," sharing his "experiences, ideas, and judicial philosophy." In any case, not to bother, critics have argued that accommodations by Stand Together are not "personal" under any definition.

Justice Elena Kagan recently joined the call for a SCOTUS code of conduct, telling an audience at Notre Dame Law School that it would "go far in persuading other people that we were adhering to the highest standards of conduct." This was a "little too late."Justice Samuel Alito has already declared that he does not recognize the authority of federal ethics laws, never even acknowledging the federal courts' Code of Conduct, while Thomas simply ignores them.

The chief justice was more insightful than he probably realized when, in 2011, he said that "at the end of the day, no compilation of ethical rules can guarantee integrity." Sadly, it appears that SCOTUS has one code of ethics for itself, and another for the rest of us.

As far back as 1962, and gradually thereafter, I have discovered the antics of SCOTUS to have sadly provided fodder for a dual system of justice in this country requiring us on occasion to unjustifiably revere those in judicial positions of authority and accept their definition of "justice for one and all" without question. Interestingly, it seems we may be on the precipice of discovering just how well and long this continues.

As if things could not get worse, there is what I refer to as the "level playing field case" arising from a dispute over the Environmental Protection Agency's (EPA) issuance of a regulation that allowed states to adopt a "plant-wide" definition of the term "stationary source" for purposes of regulating air pollution. The Natural Resources Defense Council (NRDC) challenged this regulation, as being inconsistent with the Clean Air Act Amendments. SCOTUS held that the EPA's interpretation was reasonable and entitled to deference under the doctrine established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

In summary, that case established an important principle of administrative law: courts should defer to an agency's reasonable interpretation of a statute that it administers if the statute is ambiguous.

While Chevron is one of the most important decisions in U.S. administrative law history, cited in thousands of cases since being issued in 1984, thirty-nine years later, in May 2023, SCOTUS granted certiorari to re-evaluate Chevron's interpretation (see Loper Bright Enterprises v. Raimondo, No. 22-451).

A decision by SCOTUS could come during the first half of 2024. Because the case was a landmark that advocated allowing agencies deference for their reasonable policy making decisions, for the time being all bets are off. Sadly, we will have to wait to see what "side of the fence" SCOTUS will choose.

Seriously, given the state of the law at the time, it is doubtful that our founding fathers realistically left the "door open" for situations such as this. The inference is that there was no reasonable expectation that a final decision in these cases would remain in fluctuation with justice remaining in the hands of those who would decide rule of law issues based on what the majority of those deciding justices "had for breakfast on any given day of rendering a decision."