The Supreme Court’s excuses for ethics violations insult our intelligence

In an unprecedented move, the Senate Judiciary Committee has advanced a bill requiring the Supreme Court to adopt a code of conduct and to create a mechanism for investigating alleged violations of the code and other laws. 

It is no secret that the Supreme Court Ethics, Recusal and Transparency Act was prompted in part by investigations into several justices’ deficient financial disclosures, receipt of extravagant gifts, questionable transactions and misuse of staff. The full court has consistently resisted adopting such an ethics code, but certain justices’ justifications for their questionable conduct only hurt their cause. 

Their excuses were all remarkably flimsy, almost beyond belief.

Justice Clarence Thomas began the round of rationalizations when Pro Publica reported that he had enjoyed decades of lavish vacations at the expense of billionaire Republican donor Harlan Crow — including cruises in Indonesia and the Greek Islands on Crow’s superyacht — none of which were included as gifts on Thomas’s financial disclosure forms as required by the Ethics in Government Act.

In a one-paragraph statement, Thomas opaquely claimed that he had sought guidance early in his tenure on the court from unnamed “colleagues and others in the judiciary,” who advised him that “this sort of personal hospitality from close personal friends” was not reportable.

Thomas has never revealed the identities of his alleged ethics advisors, but it is notable that no justice or judge has stepped forward to take responsibility for his decidedly lax interpretation of the disclosure rules. Whoever may have mentored Thomas, it is highly unlikely, to put it mildly, that any federal judge in the early 1990s  would have understood “this sort of personal hospitality” to cover the omission of 20 years of luxury vacations at a private Adirondacks resort, a Texas ranch and California’s Bohemian Grove, ferried on a private jet (not to mention payment of private school tuition for the justice’s nephew and the purchase of his mother’s home).

As excuses go, “somebody once told me it was okay” is about a step above “the dog ate my homework,” but it is still better than Thomas’s earlier excuse for ­­not disclosing years of his wife’s employment when Virginia Thomas was paid $686,589 by the conservative Heritage Foundation and Hillsdale College.

Upon amending 20 years of his financial reports, Thomas gave the far-fetched explanation that he had “inadvertently omitted” the information “due to a misunderstanding of the filing instructions.” It takes almost preternatural shamelessness for a Supreme Court justice — whose job calls for parsing the most complex legislation — to insist that he misunderstood the plain meaning of “spouse’s employment” for 20 reporting years.

If Thomas’s excuses for nondisclosure were sketchy, at least he didn’t become visibly angry when he was caught. Not so Justice Samuel Alito, who made an irate preemptive strike via the Wall Street Journal editorial page when he learned that Pro Publica was about to publicize his own nondisclosures. 

The Pro Publica reporters contacted Alito for comment before going live with their article about an Alaska vacation financed by prominent Republican donors. Rather than answer their questions, however, Alito took advantage of his contacts at the Wall Street Journal to get a jump on the story. He published his response several hours before Pro Publica’s post, in which he called the yet unseen article misleading and false.

There was no disputing the facts. In 2008, Alito enjoyed a three-day, all-expenses junket at a remote Alaska fishing camp owned by a wealthy conservative activist named Robin Arkley II which was apparently arranged by Federalist Society official Leonard Leo. Another guest was the billionaire Paul Singer, who flew the justice to Alaska on his private jet. No details about the trip were listed as gifts on Alito’s disclosure forms.

Unlike Thomas, Alito claimed no preexisting friendships with his benefactors, which did not stop him from playing the “personal hospitality” card. Although the statutory disclosure exception clearly applies only to “food, lodging, or entertainment,” and not to transportation, Alito defended his nondisclosure by cobbling together several unrelated statutes in a tortured attempt to show that private jet flights constitute “hospitality facilities.”

The justice seemed to argue that the trip had no value because he sat in “what would have otherwise been an unoccupied seat,” imposing no “extra cost” for Singer. One might expect an avowed textualist to pay more attention to the statutory definition of “gift,” which includes, for example, “free attendance at an event,” which also costs nothing to the host.

The most recent revelations involve Justice Sonia Sotomayor’s use of court staff to bolster her book sales at speaking engagements. That would have violated the lower federal courts’  Code of Conduct for United States Judges, which prohibits the substantial use of “chambers, resources or staff” to engage in otherwise permitted financial activities — if the Supreme Court had ever adopted its own version of the code.

Sotomayor’s excuse was that her “chambers staff” was only recommending “the number of books based on the size of the audience so as not to disappoint attendees who may anticipate books being available at an event.” In other words, the justice admitted assigning a judicial assistant to keep track of book purchases relative to audience sizes, in order to maximize her potential sales.

The three justices’ hollow rationalizations display a patronizing expectation that the public will ultimately buy whatever they say, no matter how implausible. 

But to paraphrase the late Justice Robert Jackson: Supreme Court justices do not get the last word because they are infallible; they only believe themselves infallible because they get the last word. When it comes to judicial ethics, that has to change.

Steven Lubet is Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law. He is the co-author of “Judicial Conduct and Ethics (Fifth edition)” and has written many other books.