The U.S. Supreme Court is speaking with one voice in response to recent criticism of the justices’ ethical practices: No need to fix what isn’t broken.
The justices’ response on Tuesday struck some critics and ethics experts as tone deaf at a time of heightened attention on the justices’ travel and private business transactions. That comes against the backdrop of a historic dip in public approval as measured by opinion polls.
Deeply divided on some of the most contentious issues of the day — including abortion, gun rights and the place of religion in public life — the court’s six conservatives and three liberals seem united on this particular principle: on ethics they will set their own rules and police themselves.
Charles Geyh, an Indiana University law professor and legal ethics expert, said everything the justices detailed Tuesday evening about ethics was essentially outlined in Chief Justice John Roberts’ annual year-end report from 2011, more than a decade ago.
“They’re basically saying … What we’ve been doing is just fine. Let’s just re-say it for those of you at the back. … That just strikes me as, you know, pretty empty,” Geyh said.
The most recent stories about the questionable ethics practices of justices began earlier this month. First came a ProPublica investigation that revealed that Justice Clarence Thomas has for more than two decades accepted luxury trips nearly every year from Republican megadonor Harlan Crow without reporting them on financial disclosure forms. Thomas responded by issuing a statement saying that he was not required to disclose the trips.
A week later, ProPublica revealed in a new story that Crow had purchased three properties belonging to Thomas and his family, a transaction worth more than $100,000 that Thomas never disclosed. Politico reported more recently that when Justice Neil Gorsuch sold property he co-owned shortly after becoming a justice, he disclosed the sale but omitted that the property was purchased by a person whose firm frequently has cases before the high court.
And earlier this year, there were stories about the legal recruiting career of Chief Justice John Roberts’ wife and whether it raised ethical concerns that she was paid large sums for placing lawyers at firms that appear before the court.
The series of revelations has provoked outcry and calls for reform particularly from Democrats. On Wednesday, Republican Sen. Lisa Murkowski of Alaska and Sen. Angus King, the independent from Maine, announced legislation that would require the Supreme Court to create a code of conduct and appoint an official to oversee potential conflicts and public complaints. Next week, the Senate Judiciary Committee will hold a hearing on Supreme Court ethics reform.
“The time has come for a new public conversation on ways to restore confidence in the Court’s ethical standards. I invite you to join it,” wrote Sen. Richard Durbin, D-Ill., in a letter.
Roberts declined in his own letter made public Tuesday evening. He wrote that testimony by previous holders of his office before Congress is “exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.”
To his letter, however, Roberts attached a “Statement on Ethics Principles and Practices” signed by all nine justices describing the ethical rules they follow about travel, gifts and outside income. “This statement aims to provide new clarity to the bar and to the public on how the Justices address certain recurring issues, and also seeks to dispel some common misconceptions,” the statement read.
But ethics experts and other court observers said the statement that followed and ran just over two pages was nothing new, just “the rehashing of things we already knew and found insufficient,” Gabe Roth, of the watchdog group Fix the Court, said in a statement.
The statement signed by the justices essentially said that they consult a wide variety of sources to address ethical issues, decide for themselves when a conflict requires that they step away from a case, and file the same annual financial disclosure reports as other judges.
The justices have previously resisted calls to write a formal code of conduct.
Kathleen Clark, a legal ethics professor at Washington University in St. Louis, said in her view, the problem is that the justices “have not been subjected to basic accountability that just about everybody else in the federal government has to comply with.”
What was striking to her about the statement, she said, was “a failure to grapple with the fundamental problem of lack of accountability.” The justices “seem to be utterly clueless about the problem they have. … They’re in a bubble apparently. They don’t see what a big problem they have with the lack of accountability,” she said.