Deceptions By Supreme Court Justices Warrant A Stringent, Enforcable Code Of Ethics

Marc H. Morial 
President and CEO
National Urban League
 

“Justice Thomas has betrayed a fundamental duty of high office: the duty of transparency. This disgraceful lawbreaking is precisely the sort of thing Congress has charged the attorney general with responsibility for addressing. It would be an absolute dereliction of duty if the Department of Justice were to fail to investigate these omissions.” -- The Project On Government Oversight

There can be no question that Supreme Court Justices Clarence Thomas and Neil Gorsuch engaged in willful deceit of the American people when they omitted key details from financial disclosures.

Congress must not only act immediately to implement bipartisan legislation that would require the Supreme Court to implement a code of conduct, but also make it clear that transgressions such as these will not be tolerated.

The head of a major law firm with dozens of cases before the Court purchased a $1.8 million property partially owned by Gorsuch. Gorsuch did not disclose the name of the purchaser.

A politically-active billionaire, who also had business before the court, lavished Thomas over 20 years with cruises on his yacht, excursions on his private jet, and vacations at his private resort.  Thomas disclosed none of the gifts.  Nor did Thomas disclose his sale of three properties to the billionaire, including the home where his mother still lives, rent-free, or the tens of thousands of dollars the billionaire spent on improvements to the home.

Gorsuch has offered no public explanation for his deception. Thomas’ defense was both feeble and untruthful. Not only did Thomas falsely claim he had no obligation to report gifts from individuals “who did not have business before the Court,” the billionaire did, in fact, have business before the court.

These deceptions are not mere ethical lapses. They are violations of the Ethics in Government Act of 1978, which requires that transportation gifts, and most real estate sales above $1,000, must be disclosed. Thomas has tried to characterize the trips as “personal hospitality,” but the law clearly requires that gifts of transportation be disclosed. Thomas appears to have understood that requirement when he reported the gift of a private jet flight in 1997. He stopped reporting them after the disclosure attracted media scrutiny.

However, the most severe punishment for these deceptions under the Ethics in Government Act is a monetary penalty. Thomas’ misconduct, especially, cries out for a stronger remedy.

The code-of-conduct legislation Senators Angus King and Lisa Murkowski have introduced is an absolutely necessary first step. But we have come to a low point in our history if Supreme Court Justices, of all people, are confused about what constitutes ethical conduct.  The problem is not that clear rules don’t exist; the problem is that there are no consequences for Justices who fail to abide by them.

Federal law already requires judges to disqualify themselves from cases if the justice “or his spouse” 
has “an interest that could be substantially affected by the outcome of the proceeding.” A congressional subcommittee clarified in 1970 that the law applies to Supreme Court Justices.

Yet Thomas refused to recuse himself from multiple cases related to the 2020 presidential election despite the revelation that his wife, Ginny Thomas, an election denial activist, bombarded the former White House chief of staff with text messages pleading with him to continue fighting to overturn the election results.

In the nation’s history, Congress has impeached 15 federal judges, removing eight from office. The only Supreme Court Justice to be impeached, Samuel Chase in 1805, was acquitted by the Senate.

One Supreme Court Justice, Abe Fortas, averted impeachment proceedings by resigning amid allegations of misconduct far less serious than those facing Thomas.  In 1966, Fortas had accepted a retainer of $20,000 – just under $166,000 in today’s dollars – from a Wall Street financier who was under investigation for securities violations.  Fortas returned the money when the financier was indicted, and recused himself when the financier’s case came before the Court. But when the arrangement came to light in 1969, Democrats in Congress joined Republicans in calling for Fortas’ resignation – even though Republican President Richard Nixon was sure to appoint a conservative Justice to replace Fortas and flip the Court’s majority.

It’s hard to imagine that Thomas will be impeached, much less convicted, or even that a bipartisan coalition lawmakers will call for his resignation. That’s not because the vast majority of lawmakers truly believe his conduct is acceptable, but because partisanship has overridden ethics.

In calling for his resignation, Fortas’ primary backer in the Senate said, “The confidence of our citizenry in the federal judiciary must be preserved.”  This is no less true in 2023 than it was in 1969.
 
 
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