Will the Supreme Court justices comply with new rules on gift disclosure?

No member of Congress has done more to spotlight ethics issues facing the U.S. Supreme Court than Sen. Sheldon Whitehouse (D-R.I.), who has repeatedly sponsored legislation and pursued inquiries regarding the Court’s refusal to adopt a written code of conduct. Whitehouse recently claimed a small victory, when, as he put it, the Judicial Conference of the United States “adopted new, stricter rules requiring far more disclosure of free trips, meals, and other ‘hospitality’ accepted by federal judges and Supreme Court justices.”

Whitehouse may have spoken too soon. The change does close a gaping loophole in the information judges must report on their annual disclosure forms. But we do not yet know whether the new rule will be implemented by the justices of the Supreme Court. (More on that below.)

Under the old Judicial Conference rule, issued pursuant to the federal Ethics in Government Act, “judicial officers” were required to report the receipt of gifts worth over $415, with a broad exception for “personal hospitality.” The term “personal” had apparently been interpreted to mean something like “extended by an individual” rather than by a business or corporation, thus allowing the undisclosed acceptance of resort vacations and private jet travel, so long as the invitations were made by acquaintances, even if some other entity was underwriting the expense.

At Whitehouse’s urging, the Judicial Conference Committee on Financial Disclosures has announced a revised definition of personal hospitality, for which “the reporting exemption does not include . . . gifts paid for by any individual or entity other than the individual providing the hospitality, or for which the individual providing the hospitality receives reimbursement or a tax deduction.” In other words, no more private gifts by proxy.

The new rule plainly applies to lower federal court judges, over whom the Judicial Conference has unquestioned authority. Major media outlets, including the New York Times and the Washington Post, have echoed Whitehouse’s claim that it will also apply to Supreme Court justices, but that is far from certain. Chief Justice John Roberts has made it clear that the justices are jealous of their individual prerogatives and do not feel bound by outside constraints.

In his 2011 Year-End Report on the Federal Judiciary, Roberts denied the authority of the Judicial Conference, stating that its “committees have no mandate to prescribe rules or standards” for the Supreme Court.

I raised this issue with Whitehouse’s office, citing the chief justice’s disclaimer. The response was that the “Ethics in Government Act is the ultimate source of these reporting requirements,” and it applies to “all judicial officers” including “the Chief Justice of the United States” [and] the Associate Justices of the Supreme Court.”

Roberts, however, dismissed that argument in his 2011 Report, pointedly stating that, under the separation of powers, “the Court has never addressed whether Congress may impose [disclosure] requirements on the Supreme Court.” Roberts explained that the justices have “nevertheless” complied with “reporting requirements and limitations on the receipt of gifts,” reminding readers that the Court’s adherence to the Judicial Conference’s regulations would be voluntary rather than mandatory.

Even voluntary compliance has been spotty. Justice Clarence Thomas once went for six years without listing his wife’s employment on his disclosure forms, implausibly explaining that it had been “inadvertently omitted due to a misunderstanding of the filing instructions.”

The late Justice Antonin Scalia is known to have taken over 250 subsidized trips during his final 10 years on the Court, some related to speeches and some just vacations. They included travel on private jets and stays at resorts and lodges, some of which he exempted from disclosure under the previous rules. Former Justice Stephen Breyer was not far behind, disclosing 185 subsidized trips during the same time period.

There is no record, of course, of privately funded travel or vacations that the justices have withheld under a loose interpretation of the “personal hospitality” exemption.

Moreover, any disclosures were likely to have been idiosyncratic, as the justices have steadfastly resisted adopting uniform ethics policies. Recusal motions, for example, are decided solely by each individual justice, with no review by the full court. In January 1991, “the Members” of the Court announced that they would voluntarily comply with income restrictions under the Ethics Reform Act of 1989, while declining to affirm “the validity of the Act or the regulations.”

Whitehouse believes that the “new rules will make it much harder for justices to travel, dine, hunt, or vacation for free at the private resort of a wealthy corporate executive – especially one with business before their court – and avoid disclosing that information to the public,” which is true only for those who decide to respect the Judicial Conference regulations.

Although the revision went into effect on March 14, there has not been any acknowledgement from the Supreme Court. We will not know whether the justices follow the rule until May 15, 2024, when this year’s reports are due. Even then, there is no enforcement mechanism for justices who balk at full disclosure.

Alone among American courts, the Supreme Court has stubbornly refused to adopt a Code of Conduct. The justices’ own ethical standards have never been fully articulated, and the public must guess about the Court’s grudging compliance with rules set by others. Whitehouse deserves congratulations for prompting the new gift rule, but he has much work ahead of him. The Supreme Court needs its own ethical code, with no hedging or reservations, and the sooner the better.

Steven Lubet is Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law and coauthor of “Judicial Conduct and Ethics” (5th edition) and many other books.