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The Supreme Court has run out of excuses.
Earlier this month, after ProPublica revealed that Justice Clarence Thomas frequently takes lavish vacations funded by billionaire Republican donor Harlan Crow, Thomas attempted to defend himself by claiming that this sort of “personal hospitality from close personal friends” is fine because Crow “did not have business before the court.”
As it turns out, that’s not true. As Bloomberg reports, the Supreme Court — including Justice Thomas — did briefly consider a $25 million copyright dispute involving a company that Crow was a partial owner of in 2005. At that point, Crow had already given a number of gifts to Thomas, including a $19,000 Bible that once belonged to Frederick Douglass.
As ProPublica later revealed, Crow even paid for the private school education of Thomas’s grandnephew, who Thomas said he is raising “as a son.” That includes tuition at a boarding school that charged more than $6,000 a month.
Similarly, if the rule is that justices must be extra careful when dealing with people who have business before the Supreme Court, then Justice Neil Gorsuch may also have violated this rule. According to Politico, a tract of land that Gorsuch owned with two other individuals was on the market for nearly two years before it found a buyer — nine days after Gorsuch was confirmed to the Supreme Court. The buyer was the chief executive of Greenberg Traurig, a massive law firm that frequently practices before the Supreme Court.
As Politico notes, “such a sale would raise ethical problems for officials serving in many other branches of government,” but the rules governing the justices are particularly lax.
There is a federal statute which requires all federal judges, including Supreme Court justices, to recuse themselves from any case “in which his impartiality might reasonably be questioned,” but there is no effective enforcement mechanism to apply this vague law to a Supreme Court justice.
Meanwhile, while lower federal judges must comply with a lengthy Code of Conduct for United States Judges, the nine most powerful judges in the country are famously not bound by this code of conduct — although Chief Justice John Roberts has claimed that he and his colleagues “consult the Code of Conduct in assessing their ethical obligations.”
The result is that the nine most powerful officials in the United States of America — men and women with the power to repeal or rewrite any law, who serve for life, and who will never have to stand for election and justify their actions before the voters — may also be the least constrained officials in the federal government.
And much of the blame for this state of affairs rests with the Constitution itself.
The Supreme Court has resisted ethical reforms in the past
ProPublica’s report on Thomas’s vacations with his billionaire benefactor is hardly the first time Thomas has been in the news for ethically dubious behavior. It’s not even the first time he’s been in the news for ethically dubious behavior involving Harlan Crow!
The last time Thomas’s relationship with this billionaire made national headlines was probably 2011, after a series of news stories described some of the expensive gifts Thomas received from Crow and from organizations affiliated with Crow. That same year, Chief Justice Roberts used his annual Year-End Report on the Federal Judiciary to defiantly rebut calls to apply additional ethical rules to the justices.
Indeed, in his 2011 report, Roberts strongly implied that any attempt by Congress to ethically constrain the justices would be unconstitutional. The fact that the Code of Conduct applies exclusively to lower court judges, Roberts claimed, “reflects a fundamental difference between the Supreme Court and the other federal courts.”
The Constitution gives Congress the power to create lower federal courts, Roberts argued, and that empowers Congress to help oversee them. The Supreme Court, by contrast, is created by the Constitution itself, and that suggests that Congress has less power to constrain the justices.
Though Roberts wrote that the justices do voluntarily comply with some rules that apply to lower court judges, such as a federal law imposing “financial reporting requirements” on all federal judges, he rather ominously warned that the Supreme Court “has never addressed whether Congress may impose those requirements on the Supreme Court” — leaving the clear impression that his Court might start striking down ethical statutes if Congress insisted that the justices must comply with them.
Roberts also offered a practical reason why the justices are left to decide for themselves whether they should recuse from individual cases. If a federal trial judge refuses to recuse from a case that they are legally required to step away from, that decision “is reviewable by a court of appeals.” And if an appeals court judge commits the same error, that “decision not to recuse is reviewable by the Supreme Court.”
But there is no higher court than the Supreme Court, and thus nobody that can review a justice’s refusal to recuse from a case — Roberts wrote that this is “a consequence of the Constitution’s command that there be only ‘one supreme Court.’” And Roberts argued that it would be “undesirable” to allow a justice’s colleagues to review their decision not to recuse because the other justices “could affect the outcome of a case by selecting who among its Members may participate.”
To date, Roberts’s 2011 annual report is probably one of the two most compressive defenses a justice has offered for the very weak ethical constraints that currently apply to the Supreme Court — and that report reads as much as an implicit threat to strike down new ethical laws as it does as an actual argument in favor of the status quo.
The other document is a tone-deaf response to the latest round of scandals that reiterates many of the same points. Signed by all nine justices —both Republican and Democratic appointees — it, too, defends their behavior, claiming that “Justices have followed the financial disclosure requirements and limitations on gifts” established by the ethical rules that govern lower court judges.
Those rules prohibit a judge from accepting gifts from “any ... person whose interests may be substantially affected by the performance or nonperformance of the judicial officer’s or employee’s official duties” — a rule that, if taken seriously, would preclude any Supreme Court justice from taking virtually any gift, because the Supreme Court sets federal policy for the entire nation. Every single American’s interests may be substantially affected by the Supreme Court.
In any event, both Roberts’s 2011 report and the Court’s more recent statement on ethics portray the Supreme Court as a unique institution that cannot be constrained by the same ethical rules that apply to less powerful judges, especially when it comes to recusals.
Those rules prohibit a judge from accepting gifts from “any ... person whose interests may be substantially affected by the performance or nonperformance of the judicial officer’s or employee’s official duties” — a rule that, if taken seriously, would preclude any Supreme Court justice from taking virtually any gift, because the Supreme Court sets federal policy for the entire nation. Every single American’s interests may be substantially affected by the Supreme Court.
In any event, both Roberts’s 2011 report and the Court’s more recent statement on ethics portray the Supreme Court as a unique institution that cannot be constrained by the same ethical rules that apply to less powerful judges, especially when it comes to recusals.
In 2004, the late Justice Antonin Scalia was asked to recuse from a case involving then-Vice President Dick Cheney, after Scalia invited Cheney to join him for an annual duck hunting trip (Scalia and Cheney wound up flying down to the trip together on Air Force Two). In refusing to recuse from the case, Scalia conceded that his recusal might be warranted “if I were sitting on a Court of Appeals” because lower federal judges who recuse from a case may be replaced by a different judge. On the Supreme Court, by contrast, “the Court proceeds with eight Justices, raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case.”
Additionally, Scalia argued that it would be “utterly disabling” to require justices to recuse from cases involving “the official actions of friends” within the federal government, because justices tend to be well-connected individuals with lots of friends in high political office. “Many Justices have reached this Court precisely because they were friends of the incumbent President or other senior officials,” Scalia wrote, warning that a too-low bar for recusal would force many justices to recuse from the large number of Supreme Court cases where a president or cabinet secretary is a party.
As a descriptive matter, Scalia is undoubtedly correct that the way to become a justice is to have lots of friends in high places. But that does not change the fact that Scalia argued that the nine justices must be the final word on disputes involving their personal friends and close political allies.
The Constitution makes it virtually impossible to discipline or remove a corrupt Supreme Court justice
Roberts’s 2011 report is correct about one thing: One major barrier preventing Congress (or anyone else) from imposing meaningful ethics reforms on the Supreme Court is the Constitution itself.
The Constitution provides that federal judges shall “hold their offices during good behaviour,” a provision that’s widely understood to require a judge to be impeached before they can be removed from office. And the impeachment process requires two-thirds of the Senate to vote to remove a justice from office — meaning that, in the current Senate, 16 Republicans would need to vote to remove Thomas, even if the GOP-controlled House agreed to begin an impeachment proceeding against him in the first place.
(Although a 2006 paper published by the Yale Law Journal argues that this understanding of the Constitution is wrong, that paper concedes that there is a “virtually unquestioned assumption among constitutional law cognoscenti that impeachment is the only means of removing a federal judge.”)
Similarly, the Constitution provides that all federal judges shall receive “a compensation, which shall not be diminished during their continuance in office.” So Thomas or another justice cannot have their salary reduced because they behave unethically, or have their pay docked to cover the cost of expensive gifts received from wealthy benefactors.
And there’s also another provision of the Constitution that effectively immunizes justices from any meaningful consequences so long as they remain loyal to the political party that put them in office to begin with. Federal judges are chosen by a partisan official, the president of the United States, and confirmed by other partisans in the Senate.
That means that both parties have an extraordinary incentive to appoint ideologically reliable judges to the courts, and to protect them. Once a staunch conservative like Thomas (or Gorsuch) is in office, Republicans have an overwhelming incentive to keep that justice in his seat regardless of whether the justice behaves unethically. This is especially true right now, when Democrats control both the White House and the Senate, and thus could replace Thomas with his ideological opposite.
The entire system is set up, in other words, in a way that rewards political parties that treat the judiciary as a partisan prize. It encourages presidents to appoint reliable partisans to the Supreme Court whenever they get the chance to do so. And, because neither party is likely to control 67 Senate seats any time soon, it also gives each party a veto power over any attempt to remove a justice — even if that justice is corrupt.
There are better ways to design a judiciary
The US federal system is unusual in that it makes it so easy for partisans to capture the judiciary. Many states, and many of our peer nations, have vastly superior systems that make it much harder for either political party to capture the judiciary, and that make it far less difficult to remove a judge who is unfit for office.
One alternative to allowing partisan elected officials to choose judges is a merit-selection commission like the one used in the United Kingdom and in many US states.
In the British system, for example, Supreme Court justices are selected by a commission consisting of the Court’s current president, a senior member of the judiciary, and representatives from local judicial selection commissions in England and Wales, Scotland, and Northern Ireland. The Lord Chancellor, a cabinet official, does have a single-use veto that they can use to reject the commission’s first choice for a Supreme Court appointment. But, if the Chancellor exercises that power, they cannot block the commission’s second choice.
Similarly, many US states use a system like the “Missouri Plan” to choose judges. Under Missouri’s judicial selection process, a seven-person commission includes “three lawyers elected by the lawyers of the Missouri Bar ... three citizens selected by the governor, and the chief justice, who serves as chair.” When a vacancy arises on the state supreme court, the commission selects three names and forwards them to the state governor, who must choose one of those three candidates within 60 days or else the commission will make the final decision.
Such commissions are not always 100 percent effective in removing partisanship from the judiciary — Arizona’s Missouri-style commission, for example, enabled the state’s former Republican governor to appoint at least two right-wing justices to the state supreme court. But they are better than the US federal system, where judicial selection is determined solely by partisans.
The idea behind these commissions is that judges should be selected by multi-member bodies that are difficult for one party to capture. In Missouri, for example, a majority of the seats on the commission that picks justices are controlled by the nonpartisan state bar or by a chief justice who was selected using this commission.
And they often work quite well in identifying competent judges that are acceptable to both political parties. In 2009, for example, then-Alaska Gov. Sarah Palin, a Republican, appointed Judge Morgan Christen to her state’s supreme court, after Christen was recommended by a Missouri-style commission. Democratic President Barack Obama later appointed Christen to a federal appeals court.
At least some states also have systems that allow supreme court justices to be disciplined or removed from power if they violate ethics rules or otherwise abuse their office.
Alabama, for example, has a nine-member body known as the Judicial Inquiry Commission, which is empowered to file charges against state court judges — including justices of the state supreme court — who engage in misconduct. These charges are then heard by a special Court of the Judiciary, which has the power to sanction or even remove state supreme court justices from office.
Like the Missouri Plan, Alabama’s system is not immune to partisan capture — it is still at least theoretically possible that the Court of the Judiciary could be filled entirely by rabid partisans. But there are two fairly prominent examples of Alabama’s system disciplining an out-of-control conservative judge even in this deeply red state.
Because of this system, Alabama twice stripped former Chief Justice Roy Moore of his judicial authority — once because Moore refused to follow a federal court order requiring him to remove a monument to the Ten Commandments from the state’s judicial building, and a second time because he told state probate judges to defy a US Supreme Court decision permitting same-sex couples to marry.
One virtue of Alabama’s system is that it keeps disputes about whether a judge or justice should be suspended or removed from office within the judiciary itself, thus obviating concerns that the legislature or executive might threaten judicial independence by bringing removal proceedings against a judge because they disagree with the judge’s decisions. Alabama’s Court of the Judiciary is made up entirely of judges who also serve on other courts within the Alabama judicial system.
All of which is a long way of saying that there are ways to design a constitution that preserves judicial independence, disciplines justices who behave unethically, and that, at the very least, diminishes partisanship within the judiciary. But we do not have that system at the federal level, and that’s why we’re stuck with justices like Clarence Thomas.
Update, May 4, 10:45 am ET: This story, originally published April 25, has been updated with further reporting about Harlan Crow and Clarence Thomas’s financial relationship, and the Supreme Court’s response to these revelations.
