Consider This from NPR - The Push for the Supreme Court to Adopt an Ethical Code

Episode Date: May 4, 2023

Supreme Court Justice Clarence Thomas has put the Supreme Court, again, under scrutiny. Reports show that conservative billionaire Harlan Crow paid boarding school tuition for Justice Thomas' grand-nephew.Revelations about the private dealings of other supreme court justices are shaking the already fragile public confidence in the institution.NPR's Sacha Pfeiffer speaks with independent Sen. Angus King of Maine about what needs to be done in order to create a binding code of conduct for the Supreme Court.In participating regions, you'll also hear a local news segment to help you make sense of what's going on in your community.Email us at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Support for NPR comes from NPR member stations and Eric and Wendy Schmidt through the Schmidt Family Foundation, working toward a healthy, resilient, secure world for all. On the web at theschmidt.org. Supreme Court Justice Clarence Thomas is in the news again today for the extraordinary generosity he has received from a conservative billionaire. What we found is that this billionaire Republican donor, Harlan Crowe, actually paid the boarding school tuition for Justice Thomas' grandnephew. That is Justin Elliott of ProPublica speaking to NPR about their recent reporting on Justice Thomas. This wasn't a distant relative. Justice Thomas actually took legal custody of his nephew when he was six years old and raised him for his

whole childhood as a son. And Crowe actually paid his school tuition. In addition to the school tuition, over more than two decades, Thomas has accepted what could add up to millions of dollars in gifts from Crowe in the form of lavish vacations, a rent-free home for his mother, and the occasional ride on private jets. Thomas, though, is not the only justice under scrutiny. Over the weekend, Politico reported that Justice Neil Gorsuch sold property to the head of a major law firm just days after his Senate confirmation hearing. That firm has since had 22 cases before the Supreme Court.

Even Chief Justice John Roberts has faced heat. Business Insider reported that Roberts' wife made more than $10 million in commissions from elite law firms. All this has eroded trust and confidence in the court, in the eyes of the public, as well as some lawmakers. This meeting of the Senate Judiciary Committee will come to order. Earlier this week, the Senate Judiciary Committee held a hearing on Supreme Court ethics. During that hearing, and this should come as a surprise to no one, divisions along partisan lines were on display. Here's the Democratic chairman, Dick Durbin.

It is critical to our democracy that the American people have confidence that judges cannot be bought or influenced, and that they are serving the public interest, not their own personal interest. And then here's the ranking Republican on the committee, Lindsey Graham. We can talk about ethics and that's great, but we're also going to talk about today of a concentrated effort by the left to delegitimize this court and to cherry pick examples to make a point. Consider this. Revelations about the private dealings of Supreme Court justices are shaking the already fragile public confidence in the institution. After the break, we'll hear from one lawmaker who wants Congress to take action.

From NPR, I'm Mary Louise Kelly. It's Thursday, May 4th. today or visit wise.com. T's and C's apply. Support for NPR and the following message come from Carnegie Corporation of New York, working to reduce political polarization through philanthropic support for education, democracy, and peace. More information at carnegie.org. It's Consider This from NPR. Trust in the Supreme Court is at a historic low. That is according to an NPR-PBS NewsHour Marist poll, which found that 62% of Americans have little to no confidence in the Supreme Court. The question now, what to do about it? Some lawmakers think it's time to write rules. Last week, senators brought forth a bipartisan bill to create a code of conduct for the Supreme Court. The bill was introduced by Republican Lisa Murkowski of Alaska and Senator Angus King, an independent who represents Maine.

Senator King spoke this week with my colleague, Sasha Pfeiffer. This bill is fairly short. The first part would require the court to adopt a code of conduct. The second part would require the court to adopt a code of conduct. The second part would create an enforcement mechanism. On the first part, what would a code of conduct for the Supreme Court look like? Well, that's an easy question because there's already a code of conduct for every other judge in the federal system, not to mention every judge in the state system. So let's say there are 10,000 judges in the country. I don't know what the real number is, but the situation we have now is that 9,991 of them have a code of conduct and nine don't.

So A, it's easy to say what it would look like, and B, it shouldn't be a great chore to draft it. So nothing specific required for a Supreme Court justice? It could essentially be identical for what the lower courts abide by? Absolutely. And the heart of it, the heart of any judicial canon of ethic is that a judge should avoid, must avoid impropriety and should avoid the appearance of impropriety. The reason is that what we're really talking about is confidence in the institution. That's why that's the heart of judicial canons of ethics in every

state and also in the federal system. So our bill does not tell the Supreme Court what their code should say. It just says do it and tell us what it is so that the public has a benchmark by which they can judge whether the conduct of the justices is living up to the standards that they themselves establish. The second part of the bill is enforcement of the code. How would the bill ensure that the code of ethics is followed? The second part of the bill would have an individual appointed by the court whose job it would be to investigate complaints or allegations of wrongdoing or violations of the code and make public their determination.

This is all about trying to restore confidence in the court. The court has no army. They have no police force. Their authority is based upon public confidence and trust, which right now, unfortunately, is at an all-time low. We spoke recently with a professor of judicial ethics, Charles Jay, and he described the bill's enforcement mechanism as weak. Here's part of what he said. The way the bill is drafted, it does not have real teeth. It really calls upon the chief justice to do some reporting.

It authorizes investigations, but it doesn't require sanctions and suspensions and so on. Senator King, how do you feel about that skepticism about the enforcement? I think I understand the skepticism, but we run straightforwardly into the Constitution and separation of powers. Constitution says justices are there on good behavior, but basically that means a lifetime term. So I understand what he's saying, but we're trying to steer a narrow path here between efficacy and constitutionality. Because you're saying that the legislative branch has a limited ability to police what the judicial branch does, and you're trying to stay within those bounds?

Exactly. And again, I think the heart of this is transparency, is having the court tell the public, here's the code of conduct we expect to live by, and then if there are questions that arise, here's the resolution of those issues. I don't think we have to put in sanctions. I would hope that the court themselves would understand how important this is and that it's reflective of their moral authority. And remember, Sasha, these are people that are appointed for life and they have some of the greatest power of anybody in our entire

governmental system. They're not elected. They're not accountable in any sense. So to ask them or suggest or propose to them and to put into place a code of ethics that the public can see and understand, it seems to me is a minimal response. And to be honest, they should do this themselves. They should take the hint. Don't make us pass a bill. Just do it. This isn't the first time Supreme Court justices have acted in a way that some experts say constitutes misconduct. I'm thinking about the late Justice Ruth Bader Ginsburg presiding over cases involving companies her husband held stock in, or Justice Scalia, who went on his hunting trip with Dick Cheney while the vice president had a case before the court. So considering that history, why push for a judicial ethics code now?

I'd be disingenuous if I didn't say that the recent revelations, particularly about Justice Thomas and the gifts that he accepted from a donor, which were extraordinary, didn't raise this issue to a higher level of visibility and basically underline the importance of doing something like this. But because Thomas and Gorsuch are conservative justices, not surprisingly, this bill has quickly become politicized. Mitch McConnell, the Republican senator, says Democrats are trying to damage reputations of justices. And then Republican Senator Lindsey Graham says it's focusing on conservatives, not liberal justices. Here's part of what Graham said. I'd like you to address this. I'm just saying there's a very selective outrage here. And from our point of view, on this side of the aisle, we're going to push back as hard as we can and tell the American people the truth about what's going on here. This is not about making the court better. This is about destroying a conservative court.

It will not work. Well, with all due respect to my friend, Lindsey, that's utter nonsense. It's certainly not the case in my case. And here's an interesting little fact. Dick Durbin, in fact, wrote the court about a code of ethics, as you know, last week, but he also did so in, I think, February of 2012 when Barack Obama was president on the same issue. So it's not as if what's going on now is attack on any particular justices. Also, what we're proposing isn't retroactive. It has nothing to do with Justice Thomas or Gorsuch or anybody else. It's forward-looking, and it says in the future, you establish what the standards are and live up to them. Still, given that very negative Republican response,

how likely do you think you are to get the 60 votes needed for this bill to pass? Well, I think it's tougher than I thought it was going to be. Frankly, I thought this was going to be an easy bipartisan bill because we're not prescribing the code. It's not prescriptive. It's forward-looking, not retroactive. I was frankly surprised that Mitch McConnell went to the floor and said, we're not going to do anything along these lines. And obviously, at the hearing this week, the Republicans linked arms and said, we're not going to do anything along these lines. And obviously, at the hearing this week, the Republicans linked arms and said, we're not going to do anything. I don't understand it, really. I guess my response is to cite Shakespeare.

He thinks they doth protest too much. This is common sense, and I think the American people understand that. Independent Senator Angus King of Maine, speaking with NPR's Sasha Pfeiffer. It's Consider This from NPR. I'm Mary Louise Kelly. Support for NPR and the following message come from the Kauffman Foundation, providing access to opportunities that help people achieve financial stability, upward mobility, and economic prosperity, regardless of race, gender, or geography.

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