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In his 2011 Year-End Report on the Federal Judiciary, Chief Justice John Roberts took it upon himself to explain that the Supreme Court, unlike every other court in the U.S., had “no reason to adopt the Code of Conduct as its definitive source of ethical guidance.” I disagreed strongly at the time, as have many observers ever since, who have demanded that the court adopt a set of written ethics rules. But I am beginning to have my doubts. It may turn out that Roberts was right, although not for his stated reason that his colleagues are “jurists of exceptional integrity and [unquestioned] character and fitness.”
The real reason to stop hoping for a Supreme Court code of ethics is that it would probably have no meaningful effect on the justices who need it most. They would simply ignore or evade it, just as they have disregarded existing ethics legislation. Justice Clarence Thomas, in particular, has made it painfully clear that he has no respect for ethics principles, whatever their source, and he has offered a nearly inexhaustible supply of excuses for why the rules don’t apply to him. ProPublica recently reported on Thomas’ undisclosed trips to a donors’ conference organized by the conservative Koch brothers, but that is only the latest revelation.
Thomas has violated the disclosure requirements of the federal Ethics in Government Act for decades, beginning when he failed to report his wife’s employment by the conservative Heritage Foundation. In 2011, following an investigation by Common Cause, he amended 20 years of reports, implausibly explaining that “[i]t has come to my attention that information regarding my spouse’s employment required in Part III B of my financial disclosure report was inadvertently omitted due to a misunderstanding of the filing instructions.”
Nonetheless, Thomas continued to flout the rules. As revealed in investigations by ProPublica and the Associated Press, he withheld information about multiple luxury vacations, financed by billionaires; other lavish gifts; a questionable real estate transaction; and certain financial assets. Even when he broadened his disclosures, he mischaracterized gifts in a way that allowed him to conceal their value.
The litany of rationales, from Thomas or his apologists and amanuenses, covering misconduct extending for over 30 years, range from improbable to contrived: It was all just “personal hospitality,” exempt from reporting; somebody once told him he could do it; other justices did it, too; he misread an instruction; he misinterpreted a different instruction; the gift was actually for someone else; his views are so settled that they cannot possibly be affected by billionaires’ largesse; and he has been singled out for political blood sport.
ProPublica’s new report, however, may finally leave Thomas without even a remotely credible excuse. It seems that Thomas has at least twice secretly attended summits of hundreds of wealthy conservative political donors, formally sponsored by a network called Stand Together and funded by the billionaire brothers Charles and David Koch, most recently in 2018. (David Koch died in 2019.) The justice was treated to flights on a private jet, as well as lodging and meals at a tony resort and spa in California’s Coachella Valley, none of which was disclosed on his 2018 financial report.
A Stand Together spokesman told ProPublica that “Thomas wasn’t present for fundraising conversations.” According to former network executives and employees who provided information to ProPublica, however, the justice did attend at least one private dinner for “top-tier donors.” Apart from the special dinner, “[t]he justice was brought in to speak, staffers said, in the hopes that such access would encourage donors to continue giving.”
The Code of Conduct for United States Judges, applicable to the lower federal courts since 1973, prohibits judges from any participation “in fund raising activities,” especially for political organizations, but of course it has never been adopted by the Supreme Court. Instead, some justices appear to have informally settled on a looser prohibition, applying only if attendees are explicitly asked for money during the event. That permissive standard would explain Thomas’ not-so-discrete presence, in the words of one Stand Together employee, as “giving donors access and giving them a reason to come or to continue to come in the future.”
But even if Thomas can skate past the rules against politics and fundraising, this time there is no possible excuse for nondisclosure under the Ethics in Government Act. Stand Together itself has undercut any claim of nonreportable social hospitality.
When questioned by ProPublica about Thomas’ appearance at the 2018 funders’ summit, Stand Together issued a statement explaining that he had attended the event to “give dinner remarks, as all the justices do,” sharing his “experiences, ideas, and judicial philosophy.”
If so, Thomas’ travel and accommodations should have been reported under “reimbursements,” according to the definition in the U.S. Judicial Conference’s Guide to Judiciary Policy, as he did that year for speeches to the University Club of New York and the Federalist Society of Texas.
Crucially, there is no exemption for “personal hospitality” under the requirement to report reimbursements, as Thomas has claimed for years of high-end vacations at the expense of Harlan Crow and other benefactors. And in any case, accommodations provided by Stand Together could not be considered “personal” under any definition.
Needless to say, Thomas refuses to see it that way. His recently filed financial report included corrected disclosures for 2017–21 but continued to omit all mention of his subsidized hobnobbing with the Stand Together donors in 2018.
Justice Elena Kagan recently joined the call for a Supreme Court code of conduct, telling an audience at Notre Dame Law School that it would “go far in persuading other people that we were adhering to the highest standards of conduct.” I fear that comes too late. Justice Samuel Alito has already declared that he does not recognize the authority of federal ethics laws, never even acknowledging the federal courts’ Code of Conduct, while Thomas simply ignores them.
The chief justice was more insightful than he probably realized when, in 2011, he observed that “at the end of the day, no compilation of ethical rules can guarantee integrity.” Sadly, it appears that the Supreme Court has reached the end of the day.