After two ProPublica investigations revealed that Supreme Court Justice Clarence Thomas may have been quietly violating federal disclosure law for over 20 years, the Senate Judiciary Committee sent a letter to Chief Justice John Roberts urging him to investigate the matter quickly—or they would have to “consider legislation to resolve it.”
For decades, Thomas has been accepting luxury vacations, including travel on private jets and yachts, from Harlan Crow, a well-known Republican megadonor—yet never disclosed it. He also sold over $100,000 in personal property to Crow without ever disclosing it.
None of the travel and vacations Thomas accepted from Crow or the property sale would fall under existing exemptions in the Ethics in Government Act, and could possibly mean up to $50,000 in penalties for Thomas. As three ethics counsels recently wrote for Slate, “there was never material ambiguity about Crow’s gifts to Thomas or the justice’s responsibility to report them.”
But with Republicans in control of the House and Democrats in control of the Senate, passing new legislation will be an uphill battle.
So what can Congress realistically do about Thomas’ conduct? We asked judicial ethics experts what could happen next:
Congress can open an investigation
Though lawmakers have urged the chief justice to open up his own investigation into Thomas, Roberts hasn’t indicated what he plans to do. But senators don’t have to wait—they can hold their own investigation through the Senate Judiciary Committee, calling on Thomas to testify, along with his clerks and even Crow.
Sen. Dick Durbin, chair of the Judiciary Committee, said as much in his letter to Roberts. “The Senate Judiciary Committee, which has the legislative jurisdiction over Federal courts and judges, has a role to play in ensuring that the nation’s highest court does not have the federal judiciary’s lowest ethical standards.” Sen. Richard Blumenthal told Politico that the committee is hoping to hold hearings on Thomas in the next few weeks and would invite the justice to come to Capitol Hill. Blumenthal said he hoped Thomas would answer the committee’s questions voluntarily, without the need for a subpoena.
The committee stressed that Roberts should still conduct his own investigation. “You do not need to wait for Congress to act to undertake your own investigation into the reported conduct and to ensure that it cannot happen again. We urge you to do so.”
Given that ProPublica unearthed two separate examples of potential disclosure violations by Thomas, an investigation has the potential to unveil a pattern of behavior by the justice that even goes beyond those, NYU law professor Stephen Gillers said. “It gives us more reason to suspect that Thomas is holding back,” he argued. “Any presumption that he’s following the law can no longer be indulged. His behavior is suspect and the public and the government have an obligation to conduct an investigation that reveals the truth.”
Further tighten disclosure regulations
Disclosure rules under the Ethics and Government Act were just tightened in March, and justices are now required to report gifts under a host of new circumstances. The new rules include any non-commercial transportation, like trips on a yacht or private jet, and gifts extended at a commercial property—like a resort, restaurant, or a property that’s regularly rented out for a business purpose.
Gillers argued there’s still room for Congress to further tighten those rules. “Now disclosure reports are not due until May of the year following the receipt of the gift or the hospitality. That’s a long lead time; they could require that filing be updated monthly.” More frequent updates could alert Roberts to any questionable activities as they happen and allow him to intervene.
Any amendments could also extend to requiring pre-trip approvals or barring justices from accepting gifts—something members of Congress have long been banned from doing.
Force a code of conduct
Tightening financial disclosure rules is a great start, but Gillers argued that Congress should take things a step further. “There’s a much deeper problem, and that is: should federal judges, including the Supreme Court justices, be able to accept such lavish, continuous generosity from a person with a pronounced political interest in the decision of a court, even if that person has no cases before the court?”
An easy first step could be for Congress to extend the Judicial Conduct and Disabilities Act to apply to the Supreme Court. That’s a code of conduct that details standards of behavior that all federal judges in lower courts across the country must adhere to. It bans judges from accepting gifts or engaging in any and all behavior that would hurt public confidence in the integrity and impartiality of the judiciary, and any violations incur steep fines. It also allows the public to submit complaints if they believe a federal judge has engaged in behavior detrimental to the court or is unable to execute duties of the judicial office.
At the same time, some argue a code of ethics just isn’t enough. “I don’t love the idea of Congress writing an ethics code, because a code is not a panacea. You need an attitudinal shift about ethics, stronger rules about travel, gifts, and that may or may not be part of a code,” Gabe Roth, executive director of Fix The Court, told me in an interview.
Expand the court
There is another more controversial option Congress could take through legislation: expand the court. It is within legislators’ power to do so. “Article III, Section I of the Constitution gives Congress the authority to change the size of the Supreme Court,” Massachusetts Sen. Elizabeth Warren wrote in a 2021 op-ed. “Congress has used that authority seven times before.”
Expanding the court—also referred to as court packing—has been a divisive issue among lawmakers on both sides of the aisle for years.
Those in favor of the idea argue that the court has not only taken too sharp of a conservative turn over the last decade, but also that the current slate of justices haven’t been receptive to reform. “Legislation that expanded the court could bring new justices and fresh ideas that would be beneficial,” said Steven Lubet, law professor at Northwestern University’s Pritzker School of Law. “If Congress added four more justices, it’s possible that the new members would be more open to promulgating an ethics code.”
Critics argue that expanding the court risks undermining its integrity and could lead to a dangerous precedent anytime lawmakers disagree with the court’s ideological balance.
When some Democrats tried to introduce legislation to expand the court from nine to 13 justices in 2021, not everyone in the party was on board. Arizona Sen. Mark Kelly told Politico “the more responsible thing to do is to keep it at nine justices.”
Leave it to the court
As eager as Congress may be to step in and hold Thomas accountable for his questionable ethics, the Supreme Court is a self-governing body, and there are limitations on what legislators can do. All the experts I spoke to said that having the court choose to implement reforms of its own accord is one of the strongest solutions.
The most obvious starting point would be for the court to adopt an ethics code. “It’s the absence of articulated standards that I think is problematic. The public really has a right to know what the justices expect of themselves, and given that public opinion is the only available corrective for the Supreme Court justices, a respectful approach would be to tell the public, here’s what we expect of ourselves, and if we do not fulfill it, you can criticize us,” said Lubet.
The Supreme Court has been asked before to adopt the same judicial code of conduct that all lower court judges are required to follow, but refused. In the chief justice’s 2011 Year-End Report, Roberts concluded that his court “has no reason to adopt the code of conduct as its definitive source of ethical guidance.” To Roth, Robert’s reasons amounted to an unwillingness to allow a code of conduct for lower court judges to dictate what the highest court in the nation can or can’t do. “It’s almost like a turf war,” Roth said.
Let the chips fall as they may
Neither Congress nor the chief justice is legally obligated to do anything at all about Thomas’ questionable ethics, since there isn’t currently a legally binding set of rules for the Supreme Court. However, there is one major risk of doing nothing: losing public confidence.
“A loss of confidence in the court threatens the very fabric of what makes the United States so resilient,” said Gillers. That confidence has taken a severe beating in recent years, long before ProPublica’s recent revelations. The court suffered a historic leak last year, published by Politico, where a draft majority opinion revealed it was poised to gut the constitutional right to abortion. That same year, Thomas was widely criticized for refusing to recuse himself from a case before the court that involved his wife, Ginni. Text messages she sent to former White House Chief of Staff Mark Meadows were part of a request by Donald Trump to block White House records from being sent to the House Jan. 6 committee investigating the insurrection.
Well before that, late justice Antonin Scalia’s ethics were also called into question. After Scalia’s death in 2016, it was discovered that he took at least 85 undisclosed hunting and fishing trips during his tenure on the court, often with conservative donors and politicians.
“Every few years you get some sort of acknowledgement that justices are humans, they have foibles and flaws. But they, as public officials, need to be following some of the same rules as everyone else,” Roth said.