A dangerous new low: Supreme Court must reform — or be reformed

The recent revelations concerning apparent ethical improprieties by U.S. Supreme Court Associate Justice Clarence Thomas go to the heart of the court’s legitimacy and necessitate that action be taken. In back-to-back bombshell reports, investigative journalists at ProPublicauncovered apparent violations of ethical norms and law by Justice Thomas.

The facts and corroborating detail are too damaging for the court as a body, or Chief Justice John Roberts as a leader, or for Congress and the country to ignore. First came a report of lavish private jet flights and yacht trips to foreign destinations bestowed upon Justice Thomas and his wife by billionaire conservative benefactor Harlan Crow. One trip and its amenities apparently had a market value of approximately $500,000. On the heels of that reporting came an article describing an apparent violation of law: failure to report under the Ethics in Government Act a $133,000 sale of property — including the home where Thomas’s mother now resides, apparently rent-free — to the same benefactor.

Then on Sunday, the Washington Post reported that, for years, Thomas has been reporting annual income totaling hundreds of thousands of dollars from a defunct company associated with his wife, raising questions about the actual source of the money.

This is not the first time Thomas has failed to comply with financial disclosure requirements.  Justices are required to disclose their spouse’s income. Over a decade ago, Thomas had for several years checked a box saying “none” in a section of his disclosure that asked for information about “spousal noninvestment income.” But during this time, from 2003 to 2007, Ginny Thomas was paid $686,589 by the conservative Heritage Foundation. Thomas said that he did not disclose this because he misunderstood the form, an answer that was risible given the clear question being asked.

Other ethical issues have arisen as well. Jane Mayer wrote a detailed article in The New Yorker describing Thomas participating in cases where his wife had a financial interest. And Ginny Thomas was very involved in efforts to keep Donald Trump in power, including many text messages to then-White House Chief of Staff Mark Meadows. This is troubling because in January, the court considered Trump’s effort, based on executive privilege, to block the release of documents to the House Select Committee investigating the Jan. 6 insurrection. The Court ruled 8-1 against Trump. The only dissenter was Clarence Thomas.

The pattern of violations shows a justice who appears blind — even willfully so — to the ethical obligations that all judges must follow. Credibly documented and undenied misconduct — by any justice, whatever his or her philosophical leanings — creates a crisis in public confidence of the highest order. Belated corrections to his financial disclosure forms do not solve the problem.

Our nation’s governance and the rule of law depend upon trust in the Supreme Court as the place where America’s most important social, political and moral value issues are peacefully resolved.

If citizens perceive that the jurists determining such issues come to the decision-making with unclean hands, it becomes impossible to sustain public faith in the court’s mission of doing justice without fear or favor. Public belief in justices’ integrity lies at the core of social stability.

That is so because, as Chief Justice John Marshall famously wrote at the dawn of the republic in Marbury v. Madison, “It is emphatically the province and duty of the judicial department to say what the law is.” The peoples’ acceptance of the justices’ judgment resides in the “Court’s … cloak of public trust,” as federal Court of Appeals Judge Irving Kaufman once wrote.

To restore public trust, immediate action is required.

First, there needs to be an investigation as to whether Justice Thomas violated the Ethics in Government Act. On Friday, the eminent D.C. ethics watchdog Citizens for Responsibility and Ethics in Washington (CREW) filed a complaint with the Chief Justice and also with Attorney General Merrick Garland, calling for investigations. A highly regarded, non-partisan lawyer should be appointed to conduct this investigation. No one — not even a Supreme Court justice — is above the law.

Second, an ethics code for Supreme Court justices, like that which exists for other judges, is imperative. In February, the American Bar Association’s House of Delegates endorsed the obvious fix — that the justices subject themselves to a code of judicial conduct akin to the one to which every other federal court subscribes.

Of course, any code must have the teeth of enforceability, a mechanism for the imposition of sanctions for violations. It now is left to each justice to decide whether to be disqualified from a case. That is not tenable, and two bills in Congress offer two different models of how to do so.

In the past, Chief Justice Roberts has said that there is no need for such a code because members of the Court “are jurists of exceptional integrity and experience … [and] are all committed to the common interest in preserving the Court’s vital role as an impartial tribunal governed by the rule of law.” Events have now overtaken that view. Few human beings are above temptation, and no judge is above the kind of rules that bind all who wield significant governmental authority.

Ideally, the court, on its own, would adopt an ethics code for its members. The absence of ethical rules is an unnecessary self-inflicted wound. Absent the court reforming itself, Congress must act and impose one on the justices. One would hope that the court would not be so foolish as to declare unconstitutional a law that is meant to regulate it.

But the court would be wise to act first in a way that preempts the need for either of the other two branches to act for them.

Even in the face of any internal resistance, leaders with the institutional vision and experience of the Chief Justice should recognize a golden opportunity when they see one.

Erwin Chemerinsky is dean and a professor at the University of California, Berkeley School of Law.Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy.