The U.S. Supreme Court’s refusal to adopt a written code of ethics is a 50-year-old story that has recently gotten lots of fresh attention — for good reasons attributable to the justices’ own poor stewardship of their public trust. The revelation of Clarence Thomas’s undisclosed luxury gifts from Republican mega-donor Harlan Crow is only the latest chapter in his long history of disregard for ethical norms.
Other recent events include Justice Neil Gorsuch’s secret speech, closed to the press, at a Federalist Society meeting in Florida that also featured speeches by Florida Gov. Ron DeSantis (R) and former vice president, Mike Pence. Another is Justice Amy Coney Barrett’s refusal to recuse herself, or even respond to inquiries, in a case involving an organization that spent over $1 million to secure her confirmation.
And of course, the leak of the draft majority opinion in Dobbs v. Jackson Women’s Health Organization, eviscerating women’s abortion rights, followed by an anemic investigation in which the justices themselves were not questioned under oath.
The story begins in 1972 when the American Bar Association published a Model Code of Judicial Conduct, intended to provide mandatory rules for judges’ behavior both on and off the bench. The Judicial Conference of the United States became one of the first bodies to formally adopt the Code of Judicial Conduct, in early 1973.
Because the Judicial Conference’s jurisdiction is limited to the lower federal courts, it was still up to the Supreme Court to adopt a code on its own, which has never happened. Every state judiciary has subsequently adopted some version of the Code of Judicial Conduct, leaving the Supreme Court, to this day, as the only court in the U.S. without written ethics standards.
At first, nobody seemed to notice or remark upon the Supreme Court’s abstention from the movement toward judicial accountability. I was among the first even to point out the absence of a Supreme Court Code of Conduct, in a 1990 essay, ironically in a journal published by the Federalist Society, which drew about as much attention as most law review articles. I returned to the subject in a 2005 column for the more widely circulated American Lawyer Magazine, calling upon John Roberts, recently nominated as Chief Justice, to begin his administration by adopting a code of conduct, which again got no traction.
Only in 2011, did Chief Justice Roberts devote his Year-End Report on the Federal Judiciary to the issue of judicial ethics. He gave little ground. Roberts allowed that the justices “do consult” the Judicial Conference’s Code of Conduct, but he added that there is “no reason” for the court to adopt its own code “as a definitive source of ethical guidance,” given that “every justice seeks to follow high ethical standards.”
Roberts’s assurance did not satisfy everyone. A group of Democrats in Congress, led by Sen. Sheldon Whitehouse (D-R.I.) and Rep. Hank Johnson (D-Ga.) began sponsoring legislation requiring the Supreme Court to adopt its own ethics code, without specifying any particular provisions or language. What should have been a bipartisan effort, typically foundered for lack of support from Republicans, whose objections have never extended to ethics codes for other courts.
The Supreme Court’s rejection of a formal ethics code could not be waved off forever. Promises of good faith and voluntary compliance only go so far, especially when certain justices have flouted the rules that apparently apply to everyone else.
Enter Clarence Thomas.
It took effrontery bordering on hubris for Thomas to think that he and his wife could spend decades enjoying Crow’s extravagant largesse without inclusion on his annual gift reports. The details in the recent Pro Publica expose — of private jet travel, yachting excursions and weeks at Crow’s private resort — have rightly drawn intense public scrutiny, much of it focusing on the Supreme Court’s failure to adopt an ethics code of its own.
The furor eventually shook loose a response from Thomas, who implausibly explained, “Early in my tenure at the court, I sought guidance from my colleagues… . and was advised that this sort of personal hospitality . . . was not reportable.”
Thomas’s rationalization depends heavily on the meaning of “this sort.” Six of the eight other then-justices have passed away, but neither David Souter nor Anthony Kennedy has confirmed presciently counseling Thomas that decades of lavish travel in the company of political operatives — which he had not yet indulged — would be exempt from future disclosure.
Eleven Senate Democrats have asked the chief justice to begin an investigation of Thomas’s undisclosed gifts. They have not yet been joined by any Republicans, who are parochially protective of the Supreme Court’s most conservative member.
Still, the Supreme Court is facing a crisis, with its approval falling to nearly an all-time low.
In the past, when its legitimacy was unquestioned, the court could get away with stonewalling calls for an ethics code. Today, when the court has been rocked by scandal after scandal, it may not be so easy.
Steven Lubet is Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law. He is the coauthor of “Judicial Conduct and Ethics” and many other books.