The annual cascade of Supreme Court decisions this week will make plenty of headlines, but polls show Americans of all political stripes are increasingly concerned about the lack of an ethics code for the high court.
Chief Justice John Roberts has said more than once that the court is working on a code of ethics for itself, but so far, crickets.
Meanwhile, investigative journalists are finding that the conduct of the Supreme Court is rich ground to plow. Last week, ProPublica reported that Justice Samuel Alito failed to disclose that he had enjoyed a high-end, all-expenses-paid fishing trip to Alaska, complete with private jet travel, courtesy of hedge fund titan Paul Singer, a major Republican donor, which has participated in 10 appeals to the Supreme Court.
Instead of answering ProPublica’s written questions, Alito did something no justice before him had done. He defended his conduct in an op-ed published on the editorial page of the conservative-friendly Wall Street Journal. In explaining why he didn’t recuse himself from a case in which Singer ended up with a $2.4 billion windfall, Alito said he had only met Singer casually at events attended by large groups. But as Indiana University law professor Charles Geyh told ProPublica, “If you’re not good friends, what were you doing agreeing to this” private jet trip? And “if you were good friends, what were you doing solving his case?”
The revelations follow those of Thomas
And then, of course, there are the ethics stories involving Justice Clarence Thomas. What we do know now is that for probably two decades, Thomas and his wife, Ginni Thomas, have taken lavish trips around the world paid for by their Republican mega-donor friend Harlan Crow, and that Crow paid private school tuition for the nephew of Thomas and bought property from Thomas and his family. Thomas never disclosed any of this, as he was required to do under the disclosure provisions of the federal Government Ethics Act, which applies to all federal judges, including Supreme Court justices.
when ProPublica Disclosing these facts, Thomas issued a statement in which he stated that when he first came to court in 1991, he was advised by his colleagues and others not to disclose the hospitality of personal friends. Thomas went on to say that his understanding has now essentially been corrected and that he would disclose such personal travel and entertainment paid for by others in the future.
However, it did not undertake to amend its previous disclosure forms. And there is at least some leeway in the matter of hospitality. The 2023 Judicial Conference “clarified” the disclosure rule to make it clear that a friend’s hospitality, unless it is at their residence or family property, must be disclosed. Thomas is expected to follow that rule in his 2022 filing, a filing for which he got a 90-day extension, as did Alito. Many court watchers, however, hope he will not change his previous statements.
Still, there are some confirmed but undisclosed transactions and benefits in the past that Thomas should have disclosed, according to ethics experts. Therefore, he will probably make some amendments to his previous statements.
“The real estate deal that fell through in 2014 where he sold his mother’s house and some adjacent properties to Harlan Crow. [The failure to disclose that] it’s a very clear violation of the law,” says Gabe Roth, executive director of Fix the Court, a nonpartisan organization that advocates for more judicial transparency. As Roth notes, the Government Ethics Act says that “if you have transactions real estate, you have to disclose it, and he didn’t.”
Similarly, Roth says the private school tuition payments for Thomas’ nephew are gifts that should have been disclosed.
To be clear, Crow’s private jet, yacht and resorts are not owned by him personally, but by his businesses. Thus, under the “clarified” friend hospitality rule, Thomas can no longer escape disclosure, even though his public statements have not committed him to amend his previous disclosure forms.
Thomas’ omissions date back more than 25 years
Thomas has, in the past, made these amendments when other omissions have come to light. In 2011, he amended 12 years of his disclosure forms to reflect his wife’s earnings between 1997 and 2009. In those years, Thomas had checked the box labeled “NONE” for his wife’s employment when, in fact, she was employed by the Republican leadership of the Chamber. Hillsdale College and the conservative Heritage Foundation earned a total of more than $1.6 million during that time, according to Common Cause and the Alliance for Justice.
Other judges have faced ethical issues related to their spouses’ work. The ethics code requires judges to disclose their spouses’ jobs but not their salaries. Jane Roberts, wife of the Chief Justice, has an interest in a legal recruitment business that places lawyers in big firms. By all accounts, she is very good at her job and makes a lot of money at it, estimated to be in the millions of dollars.
But most legal ethics experts jumped to his defense when critics raised questions about any potential conflicts of interest.
“He did nothing wrong,” said University of Virginia professor Amanda Frost, who specializes in legal ethics. In fact, friends of the chief justice and his wife point out that she left her job as a lawyer at a top law firm when her husband was appointed chief justice, precisely because she wanted to avoid any appearance of ethical conflict.
Fix the Court’s Roth calls Jane Roberts’ criticism “mostly a nothing burger,” but draws a distinction between Jane Roberts and Ginni Thomas, who has consulted on several issues that have reached the Supreme Court. Most recently, Ginni Thomas participated in legal efforts to overturn the 2020 presidential election, but Judge Thomas did not recuse himself when these issues reached the Supreme Court.
The problem with the courts is that all these stories, and more, are a corrosive drip, drip, drip, eroding public confidence in the court. And if you compare the Supreme Court today with the one 40, 50 or 75 years ago, this is a very different world. At that time the judges were not, for the most part, great public figures. They didn’t write books or make many speeches, and especially not to groups with clearly ideological viewpoints.
And perhaps most importantly, there was no large group of enormously wealthy people, often tied to political parties and causes, trying to get close to members of the court.
The New Billionaire Class of “Friends”
In the past, judges had political friends; they even played poker at the White House. Washington is, or was, a very nice city. But judges did rule against their political friends, and if they got too close, as Judge Abe Fortas did with President Lyndon B. Johnson, he eventually had to resign.
Today there are billionaires, lots of them, who want to build bridges with certain members of the court. As far as is known, at least so far, they are conservative men and women interested in conservative causes. They want to brag about knowing the judges, and even if they don’t argue Supreme Court cases they want proximity and, indirectly, probably influence.
By most Americans’ standards, Supreme Court justices do very well financially. In fact, if they really cared about money, they probably wouldn’t be federal judges. They could be making literally 10 times their salaries, which in January were $274,000 for associate justices and $286,000 for the chief justice.
The richest and the poorest of judges
We know quite a bit about their wealth status because they have to file financial disclosure forms for their investments, real estate transactions, books and teaching income. Seven of the nine judges filed their disclosure forms on time in June.
In terms of relative wealth, Roberts is way ahead. After all, after nearly a decade of public service, he spent 12 years at an elite law firm earning what would be in today’s dollars up to $1.7 million annually, and now his wife is contributing a lot of money.
Following what is considered best practice for judges, Roberts has most of his investments in various types of index funds and mutual funds, where he does not control the investments and will have no conflicts of interest. That said, the way these investments are publicly reported is through a code that indicates ranges; for example, M is $150,000 to $200,000 and P1 is $1 million to $5 million. So when you add up all of Roberts’ investments, the grand total is a ridiculously meaningless range: $10 million to $30 million. None of the other judges come close to that, and there’s no way to know if Roberts’ actual total is on the low or high end of that range.
As for the other justices, on the low end in terms of wealth are Justices Brett Kavanaugh and Elena Kagan.
Kavanaugh lists investments from $15,000 to $65,000. He’s spent most of his adult life in public service, and even with his teaching income, limited to $30,000, he’s probably struggling the most right now. He lives in a modest and relatively small house, and his wife has a part-time job. In fact, during the pandemic, with the exception of the chief justice, Kavanaugh was the only justice working in his Supreme Court office, because with two teenagers at home, it was too difficult to concentrate.
Kagan owns an apartment in Washington, but rents the parking space that comes with the apartment for between $15,000 and $50,000, probably closer to $15,000. And he has investments, many of them in individual retirement accounts and what appear to be other retirement accounts, with total investments between $1.6 million and $3.5 million.
Publishers pay millions for books
In addition to the teaching income and spousal income that some magistrates have, five of the nine are receiving or have made significant sums in book advances and royalties.
Justice Sonia Sotomayor has earned $3.5 million from her best-selling autobiography and children’s books. Thomas reported earning more than $1 million for his autobiography, also a bestseller. Judge Amy Coney Barrett has signed a $2 million book deal with a conservative publishing label. No word on what it is. Judge Neil Gorsuch has earned approximately $1 million from two books, one of which is a bestseller that is a compilation of his essays, speeches and personal reflections. And Judge Ketanji Brown Jackson reportedly signed a contract to write her autobiography for at least $1 million.
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