This is a part of Disorder in the Court, a weeklong series on the legal press and the most explosive Supreme Court in generations: how we cover it, how we’ve failed, and how we can do better.
The crisis in legitimacy in American political institutions is palpable. Radical partisan and racial gerrymandering have undermined confidence in legislatures across the country—and contributed to outrages like the expulsion of Black lawmakers in Tennessee. Radical district judges in Texas have abused their authority in order to attempt to force nationwide bans on an abortion medication and on critical parts of the Affordable Care Act. But nowhere is the challenge greater than in the United States Supreme Court. Over the past couple of months, astonishing reporting has come out about the financial relationship between Justice Clarence Thomas and his apparently billionaire benefactor, a man named Harlan Crow, whose relationship with Thomas only began after Thomas ascended to the highest court. Other reports about other justices have followed, though none quite so extraordinary.
It is past time for a serious response—one that goes beyond merely adding the Supreme Court to the code of conduct that applies to all other federal judges. We need an independent authority to enforce basic ethical standards for the highest court in the land.
It seems difficult to build an ethics system from scratch for a centuries-old institution, but there happens to be an excellent model for this. In 2008, after a protracted process and struggle, the U.S. House of Representatives created an independent Office of Congressional Ethics, or OCE. The effort to create an independent component to enforce ethics in Congress had gone on for decades. But it succeeded in major part because of an outrageous scandal: In 2005, then-Speaker Dennis Hastert ousted the conservative Republican chair of the House Ethics Committee, Colorado’s Joel Hefley, and two other Republican members, because they had done their job and chastised Majority Leader Tom DeLay for repeated ethics violations. The outrage was enough to push the effort from idea to practice.
I was deeply involved in creating OCE. A handful of outside experts worked diligently with Massachusetts Rep. Mike Capuano, who had been appointed by Speaker Nancy Pelosi to find a balance that would give the office enough power to act independently while also achieving a majority of support in the House. It was, of course, highly controversial—lawmakers were wary of giving up any control over a process that had often been politicized—and in the end, despite multiple compromises, it barely eked out a majority. Nearly all Republicans opposed OCE, and it took a major effort by Pelosi to get it over the finish line. But thanks to the support of both Pelosi and Republican Leader John Boehner, the first appointees to OCE—including former House members like David Skaggs and Porter Goss, and others from across the political spectrum—took the job seriously. Every decision, including highly controversial ones, was unanimous. It has been an asset to the House and the public ever since.
Why an independent office? It is clear that no organization can effectively police its own without effective enforcement mechanisms. That has been proven true over and over in professions like the law and medicine, and in institutions like the police. The instinct to protect one’s own from criticism or sanction is too strong. OCE, while far from perfect and still regularly threatened—including at the start of this Congress by Speaker Kevin McCarthy—has proven since its creation to be a highly positive force. The failure of the Senate to create a comparable mechanism was shameful. There, despite efforts from then-Sen. Barack Obama, the old-boy network and the desire to protect their own prevailed. To underscore the embarrassing reality of this failure, no senator has been sanctioned since 2007!
Creating and fostering legitimacy in government institutions is critical in a democracy. That’s one of the reasons most parts of our government have such organizations, though not all are perfectly executed. In the executive branch, there are strict standards and enforcement through an Office of Government Ethics and inspectors general. They can be subject to distortion and chicanery, but at least the standards are clear and employees and appointees know full well what the limits are on investments, gifts, and other behavior that crosses the line.
In the federal judiciary, there is a code of conduct that was created by the Judicial Conference. If there are serious violations, they are dealt with by a panel of judges. Unfortunately, this process is not adequate, because it yet again means peers judging peers. That means there are clear ways to evade its oversight. For example, when Brett Kavanaugh, who was then a judge in the U.S. Court of Appeals, was accused of ethical violations, a panel appointed by Chief Justice Roberts failed to act until Kavanaugh had been confirmed for the Supreme Court, and then claimed it could not act because it no longer had jurisdiction.
But at least most federal judges have a code that outlines clearly appropriate and inappropriate behavior, and makes clear what violations exist. That, as we all now painfully know, does not apply to the Supreme Court. As Slate previously reported, in his 2011 annual report on the judiciary, Roberts “asserted that there is ‘no reason’ to adopt a SCOTUS code because members of his court consult a wide variety of other sources for guidance. In addition, Roberts noted that current iterations of the judicial code do ‘not adequately answer some of the ethical considerations unique to the Supreme Court,’ and that ‘no compilation of ethical rules can guarantee integrity.’ ”
If it was not clear before, it certainly is now that the failure to create and enforce minimal ethical standards for the Supreme Court has resulted in massive embarrassment and a challenge to the fundamental integrity of the Roberts Court. The ProPublica revelations about Clarence Thomas and his lavish gifts and trips, none disclosed and all painful violations of fundamental judicial conduct, have already stained the court. The revelations grow by the day. Crow purchased Thomas’ childhood home, did major renovations, and is allowing Thomas’ mother to live there rent-free for as long as she lives. Thomas additionally received around $150,000 from Crow to cover private school tuition and costs for Thomas’ nephew—all undisclosed. But Thomas did disclose a $5,000 tuition gift from another benefactor, making clear that he knew the enormous gift was problematic at best, and that the failure to disclose was a direct effort to deceive. And then we had the revelation that right-wing court whisperer Leonard Leo channeled nearly $100,000 to Ginni Thomas, but made sure that it was hidden from view, right before Leo and his cronies filed an amicus brief in the pivotal Shelby County case that eviscerated the Voting Rights Act.
Even more painful is that this is not the first—or second—time that Clarence Thomas has been caught red-handed. In 2011, it was revealed that Thomas had failed to disclose nearly $700,000 in income for his wife, from 2003 to 2007, from the Heritage Foundation. He then filed amendments on 20 years of disclosure forms to correct his violations. Apparently even after that, he decided to hide from the disclosure forms his gifts and trips from Harlan Crow. And after the Jan. 6 insurrection, Thomas refused to recuse himself from any cases, despite the fact that his wife Ginni had been deeply involved in the events leading up to Jan. 6.
The House and Senate have worked on two commendable bills to address the issues. One by Sen. Chris Murphy and Rep. Hank Johnson would both establish a code and create the equivalent of an inspector general for the Supreme Court. Another, by Sen. Sheldon Whitehouse and Rep. Johnson, would have an investigative board consisting of the chief judges of the various circuits—and would close the loophole that an investigation ends with confirmation to the court.
Either of these options would be better than what we have now, but there is another, and better, way to go—to emulate OCE by creating an independent Office of Judicial Ethics. We know from much experience that, as good as the inspector general process is, it can be manipulated by a president, as was done multiple times by Donald Trump. This can end up with an IG being more interested in protecting miscreants than enforcing standards, as continues to be the case with the execrable IG at the Department of Homeland Security, Joseph Cuffari. Similarly, a permanent investigative panel consisting of the chief judges has the ongoing flaw that it still involves sitting judges judging their colleagues and counterparts.
An OJE could have as members retired judges, ethics experts at law schools and other academic departments, former ethics officials from the other branches, and others. They could recommend penalties ranging from public admonishment to temporary suspension from duties to recommendations for prosecution or impeachment. Imagine, for example, a panel chaired by someone like Michael Luttig, a retired judge—there would be so much less concern that their judgment would be clouded by any ambition to ascend to the court themselves. Knowing that an independent office was the watchdog would concentrate the minds and sensibilities of all the justices—and finally create some larger confidence in the integrity of the court and the personal integrity of its justices.