Roberts's goal of boosting trust in Supreme Court takes another hit with Clarence Thomas revelations

Chief Justice John Roberts’s stated mission to preserve the integrity of the Supreme Court suffered another setback this week when it was revealed that Justice Clarence Thomas had, for years, failed to disclose the acceptance of lavish gifts from a wealthy conservative donor.

A story published by ProPublica on the unreported gifts Thomas accepted — which included multiple trips on private jets and yachts owned by Texas billionaire and conservative donor Harlan Crow as well as stays at the mogul’s luxury retreat — put new pressure on Roberts to establish a binding ethical code of conduct for the nation’s highest court, experts said.

“Something needs to be done, and as long as Chief Justice Roberts sits on his hands he is baiting Congress to do something, and meanwhile undermining himself and the court,” Donald Sherman, deputy director of Citizens for Responsibility and Ethics in Washington, told Yahoo News.

Since being confirmed to the court in 2005, Roberts has led internal discussions about whether to establish a code of conduct for the justices. In 2019, Justice Elena Kagan said the court was studying the issue. But so far nothing has come of it.

Roberts has said the justices are encouraged to consult the Code of Conduct for United States Judges, which governs the behavior of most federal judges, but they are not bound by it. Still, the 1978 Ethics in Government Act requires judges to disclose most gifts over $415, and Thomas may have violated that statute by not disclosing the gifts from Crow, experts told ProPublica.

But the Supreme Court itself has found that gifts extended through “personal hospitality” are exempt from the Ethics in Government Act. Those, Steven Lubet, co-author of “Judicial Conduct and Ethics,” wrote in a recent op-ed in The Hill, “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.”

That appears to be how Thomas interpreted the rules about accepting gifts.

“Early in my tenure at the Court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable,” he said in a statement released after ProPublica published its story.

While Thomas went on to say that the “guidelines are now being changed” and that he would follow the new rules “in the future,” failure to report gifts deemed to be personal hospitality won’t be punishable until reforms are put in place.

“There is no enforcement mechanism for justices who balk at full disclosure,” Lubet wrote. “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.”

Sen. Sheldon Whitehouse, D-R.I., has tried to tighten the requirements of the 1978 law so it applies to the Supreme Court. But in the wake of the Thomas story this week, even Whitehouse acknowledged that in order for binding changes to be put in place, they would have to be agreed upon by the justices themselves.

“All of this needs robust investigation, and it’s the Chief Justice’s job to make sure that occurs,” he tweeted Thursday.

In other words, until undisclosed gifts like the vacations and travel received by Thomas are deemed by the people receiving them to be violations of a code of conduct, they will continue.

“At the end of the day, there are no consequences for [Thomas’s] actions,” Sherman, who has testified multiple times before Congress on the subject of judicial ethics, said in an interview. “These facts continue to highlight the need for the court to have a binding code of conduct, a process for discipline — separate and apart from impeachment — and a transparent and independent process for recusals.”

Numerous legal experts have joined the growing calls for the court to voluntarily impose some accountability.

“At a time when public institutions are redoubling their efforts to improve the public’s trust, we maintain that a formal, written Code, offering a uniform set of principles that justices and the public alike would look to for guidance, would benefit the Court and the nation,” a group of legal scholars wrote to Roberts last year.

The scholars noted that if Congress were to pass a law requiring a code of conduct at the high court, it would raise “weighty questions” about the separation of powers. Nonetheless, the latest revelations about Thomas have prompted new statements of resolve by members of Congress who seek to force the court’s hand.

“Americans’ confidence in our highest court is tanking because of this kind of conduct. We need answers. And the Court needs a code of ethics,” Sen. Chris Van Hollen, D-Md., said in a statement.

Van Hollen, who chairs the appropriations subcommittee that has jurisdiction over the Supreme Court, told the Washington Post this week that he is considering using the power of the purse to extract a concession on this issue from the court. That could come in the form of legislation that would tie the court’s $200 million budget for fiscal year 2024 to the implementation of a code of conduct.

But that stipulation would also have to pass the Republican-controlled House. GOP leaders like House Judiciary Committee Chairman Jim Jordan of Ohio said last year that calls for higher ethical standards were part of a “partisan attack” by Democrats against Thomas and other conservative justices.

Meanwhile, amid rising political polarization in the U.S., and acrimony over the court’s decision to overturn Roe v. Wade and the leak of that opinion, public trust in the Supreme Court hit a historic low last summer. The Thomas story is only the latest blow for the court and may finally provide Roberts with the impetus to push the other justices to work together on a code of conduct.

“As long as 9 justices are exempt from any process for enforcing basic ethics, public faith in SCOTUS will continue to decline, and dark money and special interests will maintain their relentless grip on our democracy,” Whitehouse tweeted.