Justice Thomas’ Ethical Lapses Illustrate The Need of An Ethical Code for the Supreme Court
Civil Rights Policy Brief #204 | By: Rodney A. Maggay | May 2, 2023
Header photo taken from: npr.org
Except for the United States Supreme Court, members of the federal bench (judges, magistrates) are bound by the Code of Conduct for United States Judges. At the state level, every state has enacted a code of conduct that all state judges must abide by. The names may differ by state, e.g. Judicial Conduct Commission, Board on Judicial Standards, Judicial Standards Commission, but the purpose is to impose ethical standards for every judge in order to uphold the integrity of the judicial system and promote confidence in the courts and the decisions that a court issues. The United States is not alone in having an ethical code for their jurists. Internationally, many courts have enacted their own judicial codes, such as this ethical code for the International Criminal Court in Europe. Even non – governmental organizations recognize the importance of having an ethical code for courts and jurists as the American Bar Association has issued a model code for a state to adopt whole or piecemeal if it decides. The issue of judicial ethics is a well-accepted legal concept with no lack of codes and resources for a jurist to refer to to guide his actions as a member and officer of the judiciary.
However, there is no enforceable code of judicial ethics for members of the United States Supreme Court.
On April 6, 2023 the website ProPublica published an explosive expose of Justice Clarence Thomas’ relationship with billionaire GOP donor Harlan Crow. The article revealed that for more than two decades, Crow has bestowed on Justice Thomas and his wife trips, travel and accommodations that could be considered luxury gifts because of their high dollar value. Justice Thomas and his wife traveled on Mr. Crow’s private jet, were guests on his private yacht and traveled to numerous locations around the globe. An estimated cost of the use of Mr. Crow’s private jet and superyacht if Justice Thomas had paid for it out of his own pocket would be in excess of $500,000. However, Justice Thomas and his wife never paid any of these expenses and allowed Mr. Crow to foot the bill. Additionally, in 2014 Harlan Crow purchased three properties owned by Justice Thomas. Mr. Crow paid $133,363 total for all three and then allowed Justice Thomas’ mother to continue to live in one of the homes on the lot he purchased. Mr. Crow subsequently made $36,000 worth of improvements on the lot. These gifts were not reported in the Justice’s federal disclosure reports even though federal officials must disclose real estate sales over $1,000.
In anticipation of a May 2, 2023 hearing by the Senate Judiciary Committee, chairman of the committee Sen. Dick Durbin, D-IL, invited Chief Justice John Roberts to testify before the committee to discuss proposals about possible ethical codes for the Supreme Court. Citing separation of powers concerns and the independence of the judiciary, Chief Justice Roberts declined the invitation. Sen. Durbin subsequently responded that he would continue working for Supreme Court ethics reform.
The fact that the United States Supreme Court is the only court in the United States without a binding ethical code is a lapse that must be corrected immediately.
The likely reason that the Supreme Court does not currently have an ethical code may be due to the concept of separation of powers. That idea states that powers expressly declared to be within the province of a particular branch of government are for that government branch to decide alone at the exclusion of the other branches of government. This has led to the legislative and executive branch taking a hands off attitude when it comes to the business of the Supreme Court. The thinking goes, that if the Supreme Court needed an ethical code, the Supreme Court would decide to give itself one.
However, all of the ethical codes at the lower levels of the judiciary and in the state courts have shown that the current hands off approach towards the Supreme Court are unworkable. Justice Thomas’ activities has created problems that is undermining confidence in the Court and in the judiciary. An analysis of the codes for the lower levels of the federal judiciary and the state courts illustrate the purpose of the ethical codes and what they are designed to prevent. One particular language that is key to Justice Thomas’ questionable activities that is found in all the codes is that a judge should avoid “impropriety and the appearance of impropriety” in all activities. What this means is that a judge should avoid activities that would raise the impression that the judge or justice’s integrity or impartiality would be impaired. Because Justice Thomas accepted gifts that are estimated to cost in excess of $500,000 on more than one occasion, a reasonable person could conclude that a wealthy donor is trying to influence the justice’s legal decisions. Mr. Crow is well known as a donor who supports GOP causes and he also serves on the boards of conservative think tanks. While Mr. Crow does not need to have a pending case in front of Justice Thomas or the Supreme Court to create the impression of improper influence, his gifts to the Justice and his wife now raises the question “Did Mr. Crow’s gifts influence the Justice to rule a certain way?” Had the Supreme Court had an ethical code for its justices modeled on any of the state judicial ethical codes or the codes for other members of the federal judiciary, then this problem of improper influence of a sitting Supreme Court justice would not have arisen. Justice Thomas would have been obligated to disclose the gifts and would have been obligated to avoid situations where an improper influence could be perceived.
What is just as disappointing as Justice Thomas’ behavior is the fact that Chief Justice John Roberts has declined to work with Congress to have an ethical code implemented for the Supreme Court. The opportunity is there and, in fact, it would be very easy to do. A new code would not even have to be written as Congress, with the Chief Justice’s support, could simply use the current ethical code that applies to all the other members of the federal judiciary at the appeals and district court levels and apply it to the Supreme Court. The Chief Justice refusing to even work with Congress only ensures that another justice could find him or herself in the same situation that Justice Thomas (and his wife, for other reasons) has now found himself in.
- ProPublica – News group’s expose of Justice Thomas’ relationship with GOP donor Harlan Crow.
- National Center for State Courts – group’s info page on every state’s ethical judicial codes with links.
This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact email@example.com.