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Supreme Court ethics are in complete disarray. It’s actually embarrassing for our nation that the highest court in the land can’t get it together. The last year and a half has been an onslaught of ethics scandals that have plagued the Court.
Most prominent of those scandals were those surrounding Clarence Thomas. Specifically, that he took hundreds of thousands of dollars in undisclosed gifts. Thomas had wealthy buddies cover private school tuition for his family on his behalf, provide his mother rent-free housing, and buy him an RV. There were so so so many revelations about the luxury gifts Thomas received and repeatedly failed to disclose. And part of the reason the gifts started pouring in to the justice was because he made conservatives nervous he was going to retire if he *didn’t* start living the high life. Plus, we learned Ginni Thomas (Clarence’s wife) was a supporter of the January 6th rioters, and despite this, Thomas refused to recuse himself from any cases related to the insurrection.
But Thomas wasn’t the only justice who had issues disclosing fancy gifts. Samuel Alito notably got gifts from European aristocracy, including a knighthood (ignore the constitutional issues with that one). And there’s the insurrection sympathy Alito’s flirted with. Though he blamed it on his wife, Alito’s home was seen flying a flag favored by insurrectionists. And his vacation home on Long Beach Island, New Jersey, flew an “Appeal to Heaven” flag which has come to be seen as symbol of Christian nationalism. Which tracks, given he was also caught on tape saying there are “fundamental things that really can’t be compromised” with the left. And that he thinks the country needs to return to a place of godliness.
There was also the questionable Neil Gorsuch real estate deal. The work of Jane Roberts, wife of the Chief, (probably wrongly) also came under scrutiny. As did Sonia Sotomayor’s publishing deal.
Despite these mounting scandals, the institutional response has struggled. Unlike every other federal court, SCOTUS didn’t actually have an ethical code. And when the Court finally released one it was… unenforceable. A lot of sound and fury signifying nothing.
But at least some justices have come out in favor of an ethical code with teeth. The New York Times recently published an exposé revealing the behind-the-scenes discussion that led to the neutered code.
Alito and Thomas, predictably, blew off concerns as ” politically motivated and unappeasable.” Which is a fantastic red herring to throw in the road when most of the focus has been on you.
But interestingly, the most vocal opponent of an enforceable code of ethics was someone else.
Justice Gorsuch was especially vocal in opposing any enforcement mechanism beyond voluntary compliance, arguing that additional measures could undermine the court. The justices’ strength was their independence, he said, and he vowed to have no part in diminishing it.
That’s a… weird reaction — Gorsuch even penned a 10-page memo outlining all the reasons why the Court should not be bound by mere ethical concerns. As noted by Fix the Court’s Gabe Roth, Gorsuch’s “stridency is odd seeing as how Gorsuch was a circuit judge for more than a decade and lived quite blissfully under an enforceable ethics regimen. And having a body of senior judges recommend, say, that a justice return a gift or take an ethics training course, or whatever the panel’s ‘enforcement’ decision would be, would in no way imperil the independence of the Supreme Court. Really an overblown concern here.”
Maybe he was just in the writing zone and decided having rules that actually apply to him was too off brand.
At the time the justices were debating the ethics questions, Justice Gorsuch was working on a book asserting that Americans were afflicted with too many laws. He warned colleagues that enforcement could undermine the independence of the court by putting other figures in a position to judge the justices, according to several people familiar with the discussions. Justice Alito echoed some of those concerns.
Gorsuch might like fancying himself bound by no rules, but the American people pretty dislike it.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].