The Daily - A Crisis of Ethics at the Supreme Court

Episode Date: May 8, 2023

Debate about ethical standards for Supreme Court justices has intensified after a series of revelations about undisclosed gifts, luxury travel and property deals. Adam Liptak, who covers the court for The Times, reviews the allegations of misconduct and the growing calls to do something about it.Guest: Adam Liptak, a correspondent covering the United States Supreme Court for The New York Times.Background reading: Revelations about Justice Clarence Thomas’s failure to disclose largess from a Republican donor have highlighted a dilemma.In written testimony sent to the Senate Judiciary Committee, the retired conservative judge J. Michael Luttig called for new ethics rules for Supreme Court justices.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, the justices of the Supreme Court keep testing the rules that govern their ethics. Adam Liptak reviews the allegations of misconduct and explores the growing calls to do something about it. It's Monday, May 8th. Adam, good morning. Hello, Michael. For once, Adam, we are not going to talk to you about a Supreme Court case.

Instead, we want to talk to you about the justices themselves and their ethics, if that's okay. It's a timely subject. There's daily revelations about potential ethics problems at the Supreme Court. Right, and that's exactly what we want to talk about, this slew of revelations over the past few weeks. So can you just summarize the biggest of those revelations? Well, the biggest ones by far all involve Justice Clarence Thomas and his relationship with a billionaire Republican donor named Harlan Crow. And the news organization ProPublica has now published three, how to characterize them, bombshells, I guess. I call them bombshells.

A brand new report is raising some serious questions about Supreme Court Justice Clarence Thomas and the lavish gifts that he reportedly accepted from a GOP mega-donor. So the first article concerned luxury trips that Crow has provided to Justice Thomas and his family for seemingly decades. The report says that the Thomases flew on Crow's private jet to Indonesia for the nine-day luxury vacation, one that they say is valued at more than $500,000. Then a second ProPublica story reveals that Harlan Crow has purchased real estate from Justice Thomas. A new report says a wealthy Republican donor owns the house where Supreme Court Justice Clarence Thomas' mother lives. To hear Harlan Crowe tell it, he wants to turn this house into a museum to honor Justice Thomas.

And he has paid money to have portraits done of Justice Thomas. So he's a big fan. And then on Thursday morning, ProPublica publishes a third story. ProPublica reports this morning the GOP billionaire donor Harlan Crowe paid for the private school tuition for Clarence Thomas' grandnephew, who Thomas was raising as a son. A member of Justice Thomas' family had his private school tuition for years paid by Harlan Crowe and not a trivial private school tuition. The total amount paid isn't known, but payments were made to two separate schools and could have exceeded $150,000. The report says that Thomas did not disclose those...

Okay, so that's Justice Thomas, and it's a little bit of a doozy. What's next? So we're going to move into areas which are more complicated. Politico is reporting Gorsuch finally found a buyer for a property he co-owned with two partners nine days after being confirmed. Politico reports that Justice Neil Gorsuch, along with some partners, owns some real estate in Colorado.

And soon after Justice Gorsuch is confirmed to the court, the CEO of a prominent law firm, Greenberg Traurig, buys the property. Once the CEO learns that Gorsuch was one of the property's owners, he checks with the firm's ethics department, gets the okay to go forward with the sale. And this law firm, we should note, has had many cases before the Supreme Court. In the 12 cases where Gorsuch's opinion is recorded,

he sided with that firm's clients eight times. And now there's Chief Justice John Roberts. Thirdly, there's Jane Roberts, the wife of Chief Justice John Roberts. She's a lawyer. Two years after the chief justice goes on the bench, she gives up her law practice because she doesn't want to cross ethical lines. She goes into a different business. She becomes a legal recruiter.

She's very good at it. But it can't hurt that you're the wife of the Chief Justice of the United States. Business Insider reporting that his wife made over $10 million recruiting for elite law firms, at least one of whom argued a case before the Supreme Court. And questions have been raised also about whether that crossed an ethical line. Right. Questions that I know have become part of a lawsuit filed by somebody who claims he's a whistleblower, a former colleague of Jane Roberts, and the crux of his claim,

and Adam, correct me if I'm wrong, is that when you're the wife of the head of a Supreme Court and you go around to law firms asking for their business, it's very hard for them to say no because they may think that saying no to the wife of the head of the Supreme Court might hurt their chances if they have a case before the chief justice and the court.

Yes, that characterizes his claim. Okay, so Adam, all of these situations naturally raise the question of whether the justices violated ethics rules. So what are the relevant rules for us to be thinking about that they may or may not have violated? The two main federal laws in this area which apply to Supreme Court justices

revolve around financial disclosures and the need to recuse yourself, to disqualify yourself from a case in which you might have a conflict. Okay, let's start with a broad summary of the disclosure rules. They are not uncomplicated, but basically they require disclosure of income beyond the justice's normal salary and gifts as a general matter, with exceptions. Okay. And what about recusal? There are particular requirements for recusal if you have, say, a financial stake in a case

or if your spouse is a party to a case. And then there's a general rule that judges and justices should avoid the appearance of impropriety. Right. Kind of self-judge whether a situation requires them to kind of step back. Right. So how do these rules, Adam, these two categories, apply to, say, the Justice Thomas revelations of all of these gifts from Harlan Crowe, this billionaire friend of his. So let's do them one at a time. We've got trips, we've got real estate, we've got tuition. As to trips, the statute carves out and doesn't require disclosure of personal hospitality.

You know, if you go to someone's house and stay overnight, you get fed dinner, you don't have to report that. It's a lot less clear whether if you have travel paid for to send you halfway around the world, whether that falls into personal hospitality. But Justice Thomas has argued in response to this revelation that he was advised at the time that it did. He's saying that even the most luxurious trip imaginable on a yacht falls into the category of a friend is just being hospitable. And as you're hinting at, technically, maybe that is correct, but it doesn't seem like it's following the intent of the law.

Yes. And then there's a complicating factor, which is that the body in charge of interpreting the law for the justices has just recently clarified things and said this kind of travel doesn't count, that it's not personal hospitality. And in his statement, Justice Thomas says going forward, he's going to disclose. Oh, wow. So maybe what he did was considered ethical until just recently, but new rules say that it no longer really is. Yes. This is deeply contested. really is. Yes. This is deeply contested. Many people think the original statute is unambiguous against Thomas, but it does help him that a recent clarification made clear that this kind of travel doesn't count. Okay. So then we get to the real estate deal. The real estate deal is simple. The law required him to disclose it. He didn't disclose it.

There's no dispute that that was a violation of the disclosure law. And what about these tuition payments for his relative that Harlan Crowe made? So long as that's a gift to Thomas and not to the grandnephew, it seems plain also under the law that that's a gift that should have been disclosed. And in fact, some years ago, when a different person paid $5,000 toward the tuition of this grandnephew, Justice Thomas did disclose it. So all these examples seem to fall under that first bucket of rules, Adam, around financial disclosure. And in a couple of cases, it seems Justice Thomas pretty clearly violated those rules. What about the second bucket, recusal? Does that perhaps come into play with Harlan Crowe and these gifts?

Harlan Crowe himself personally does not seem to have had business before the court. He's a businessman with interests in lots of different companies. He's a businessman with interests in lots of different companies, and Bloomberg reported that in at least one case, a Harlan Crow affiliated company was involved in a case the Supreme Court decided not to hear. And there was no indication that Thomas had recused himself from that. listeners' minds might drift to another recusal-related set of issues surrounding Justice Thomas, which is that he did not recuse himself from a case involving the 2020 election and efforts by President Trump to challenge those results, even though Justice Thomas' wife, Ginny, is very active in efforts to overturn the 2020 election. And so that feels relevant. Yes, on three different occasions,

he not only sat on, but twice dissented in, cases at the Supreme Court involving January 6th and efforts to get to the bottom of it. And given Ginny Thomas's activities, legal experts say that's not a close case. If there's such a thing as an appearance of impropriety, that satisfies it. And if your spouse is involved in efforts to overturn an election and a congressional body is looking into it and the question is, should they be allowed to figure out what happened? You would think that Justice Thomas should have recused himself.

Right. And not only did he not recuse himself, he essentially, in each of these cases, dissented against the majority of his colleagues on the court and made clear that he was, spiritually speaking, siding with his wife and her agenda. That's right. Okay. That is Justice Thomas, and that was a lot. Let's turn now to Justice Gorsuch and his real estate deal.

Did he follow the relevant rules? You know, most legal experts say that he did. That what was required to be disclosed was disclosed. Would it be better if we had more information? Yes. But it seems he followed the ethics rules as they were written. Hmm. So that's disclosure.

What about recusal? Have questions been raised about whether Gorsuch should have recused himself from any cases involving the CEO of this law firm who purchased this land that Gorsuch co-owned? Well, on the one hand, the firm did have cases before the court. On the other hand, most legal ethics experts say that this is not the kind of case in which recusal is required, given that there's no indication that this was anything but an arm's length transaction. So you're saying there's enough degrees of separation here, unlike in the case of Justice Thomas, to conclude that this doesn't raise the same kinds of ethical questions. That sounds right to me, yeah.

doesn't raise the same kinds of ethical questions. That sounds right to me, yeah. Okay. Finally, Adam, what do the rules have to say about this third revelation involving the Chief Justice, John Roberts, and his wife, Jane? So the disclosure requirements are that you have to say where your spouse got income from and not the amount of the income.

And the Chief Justice, of course, did disclose that his wife works at a legal recruiting firm. And he did not disclose her income and he's not required to. The whistleblower's claim is that this is not salary exactly. These are commissions and that there should have been disclosure of the law firms paying the commissions. That has some logic to it, but it doesn't seem to be required by the disclosure rules. Got it. So the whistleblower wishes that the chief justice had gone to greater lengths to disclose the source of his wife's income. He didn't, but it's not clear that he had to. So in summary, it seems Roberts more or less followed the disclosure rules here.

Do recusal rules at all come into play for him under these circumstances? Legal experts generally say no. There is an advisory opinion from the court system that says occasional legal recruiting efforts don't require recusal if the firm then appears before you, but if they were sustained, you know, four of them in a year, maybe you get a different result. I don't think legal experts on ethics think the relationship is direct enough, that you paid Jane Roberts some sum of money to recruit a new partner, and therefore, when you appear before the Supreme Court, the chief justice should recuse himself. Interesting. So the scorecard here is that these justices are doing a somewhat good, but by no means perfect job of following the letter of the law when it comes to their financial ethics. seems to be doing a very poor job of following the ethics rules and perhaps stands alone in repeatedly

and perhaps somewhat brazenly violating those rules. Right, and one reason to think that is because he used to disclose stuff, and then he stopped. Justice Thomas, in his judicial work, in cases involving campaign finance, is sometimes the lone voice insisting that disclosure is a bad idea. So this is consistent with his judicial views. That less is more. Yeah, nothing to see here.

Trust us. We should not be made to explain ourselves to the American public. And the reality is that if Justice Thomas or another justice does cross an ethical line, it's very hard to do anything about it. We'll be right back. We'll be right back. So, Adam, just before the break, you said that it's hard to actually do anything about the fact that a Supreme Court justice has run afoul of an ethics rule. So just explain what that actually means in the context of the cases that we have been talking about so far.

Well, it's an extraordinary thing. There's the old legal adage that no one should be the judge in his or her own case. And yet this is a stark exception to that. The justices get to decide for themselves whether to recuse, what to disclose. And if you disagree, there's sort of nobody to go to. Right. So we're really in a world which is exactly the opposite of that intuition everyone has, where you shouldn't get to be the judge in your own case. And this is not a completely new world. There are historical examples, some recent, some long ago.

For instance, Justice Antonin Scalia went duck hunting with Vice President Dick Cheney while Dick Cheney had a case before the Supreme Court. Liberal justices Stephen Breyer and Ruth Bader Ginsburg went on countless trips subsidized by all sorts of groups. Justice Breyer went to Nantucket on a trip paid for by David Rubenstein, a private equity mogul. Justice Ruth Bader Ginsburg got a private tour of Israel paid for by an Israeli billionaire who had had business before the court. So the justices on both sides of the ideological spectrum could have been a lot more careful. And all of this, especially the new revelations, have raised this question of whether self-policing is hopelessly ineffective and we need an alternative to it, right? So what are the options for a system,

a mechanism for more robustly enforcing these ethics rules? So almost everybody seems to agree that a binding ethics code for Supreme Court justices would be a good idea. And what does that mean exactly, a binding ethics code versus what we have now? That's exactly the question. Everyone mouths these words. And I guess what does the work in the phrase is binding. And what binding seems to mean is enforceable. And then the question is, well, who's going to do the enforcing? Mm-hmm. I mean, one idea is one of the other two branches, either the executive branch or Congress. And what might that conceivably look like?

Well, Congress could pass a tougher law and could instruct the Supreme Court to enact its own ethics regulations. And Congress has other tools. Congress has an appropriations power over the court's budget. Right. Their power is that they pay for the functioning and the salaries of the justices on the court. That's right. And then Congress could, now this is getting fairly fanciful, impeach a justice for an ethical violation. So in theory, the tools exist. Okay, and what about the executive branch?

Well, the executive branch could penalize or prosecute violations of ethics laws. And this is true of financial disclosures. In theory, the Department of Justice could penalize a justice for failing to disclose gifts and other stuff. And what would penalization perhaps look like? Well, I think the Ethics and Government Act, if I have this right, allows penalties of around $70,000 for willful violations of the disclosure requirements. You know, I mean, we can spin out

these hypothetical scenarios. It's very hard to imagine them happening. And at least some of them, and maybe all of them, test the separation of powers, the idea that one branch shouldn't be able to tell the other branch what to do. Let's linger on that for a minute. I understand the idea and theory that there are three branches of government and they're all independent, but the executive and legislative branches are constantly getting into each other's business all day long.

Why is there hesitation around those two branches suddenly intervening in the judicial branch? I think you have to make a distinction. Most people would agree that the other branches should not have anything to say about the court's judicial conduct, about how it decides disputes. There, it really should be independent.

How it rules on cases. Right. But it's non-judicial conduct. It's, you know, jet-setting lifestyle. It's conflicts of interest. It's failure to recuse or not. I don't think that those are subjects that the separation of powers disables either the executive branch or Congress from addressing. So the only thing holding the executive and congressional branches back from doing this may just be a historical sense that it shouldn't meddle in the judiciary. But you're saying there is a logical space for them to start to intervene, this discussion is theoretical and tinged with partisanship. Theoretical because it's pretty hard to imagine that this polarized Congress is going to take any action. And then partisan because increasingly this discussion is being framed by Republicans as unhappiness by liberals about the court's rulings

and what they would call a partisan hit job against a justice they've never cared for, Clarence Thomas, and that the court ought to be trusted to make its own decisions. the court ought to be trusted to make its own decisions. Okay, so what you are reflecting is the Republican claim that this ethics discussion is kind of really just a level of upset with this court masquerading as, you know, a high-minded worry about the justice's conduct. But I think to inhabit the Democrat side of this, the justices' conduct. But I think to inhabit the Democrat side of this, they would simply say, it's not our fault that all these ethical questions are being raised around conservative justices. It's their conduct that has created that problem. Right. And Republicans might say back that, is it a coincidence that after the Supreme Court does away with the constitutional right to abortion

enraging part of the nation, there is much more intensive scrutiny of the justices' conduct, and particularly the conduct of the justices on the right. Right. So this is kind of an endless chicken and egg situation, which came first. Yeah. Okay. So we've been talking about the two branches of government potentially intervening in the judiciary, but there's another option, right?

Which is that there could be an internal judicial enforcement mechanism inside or around the Supreme Court, correct? Right. I mean, the judicial branch could do stuff. It could try to figure out a way to get rulings, maybe even non-binding rulings, but advisory opinions, something from somebody other than the justice, him or herself.

Could be an inspector general, an ombudsman, a panel of respected retired judges, somebody other than the justice, him or herself, to say this conduct is proper, this conduct is not. So the justices would have to authorize the creation of such a body to be housed within the judiciary that, let's be honest, would start to officially second-guess and enforce the justice's ethical behavior. Right. So they're not going to be inclined to do that. And at some point, it may become problematic because if that body has actual enforcement power over the Supreme Court, that's going to strike the court as not only odd, but maybe in tension

with the Constitution, which imagines that the Supreme Court is supreme. I would hope that in the face of sophisticated guidance from the ombudsman or panel of judges or whatever, most justices most of the time will say, listen, I may agree, I may disagree, but I'm not going to imperil the reputation of my institution, and I'm going to abide by that judgment. So in the end, that option would rely on the goodwill and the good graces of the justices. So in a way, it's still kind of a version of the current system of self-policing. That's right. It's a puzzle about how to enforce ethics rules in a body that is charged with being the final decision maker on all manner of things. But these are nine smart people.

If they really wanted to solve the problem, they could. Hmm. Key word there, if they really wanted to solve the problem, they could. Hmm. Key word there, if they really wanted to solve the problem. And so far, we haven't seen any evidence that these justices want to firm up the ethical rules around them. And I think what they think is that all of this stuff is a distraction. The real question is, is any of this activity causing them to vote differently than they otherwise would have voted?

And Clarence Thomas may have taken all manner of gifts and transactions from Harlan Crowe and may have crossed ethical lines, but I don't know that a lot of people think that Clarence Thomas is voting differently because of this relationship. He's a committed conservative with an idiosyncratic but consistent judicial philosophy. And the court probably thinks that until you get to the point where someone is actually being bribed to change a vote,

you don't have an authentic problem. Fair point. But that's perhaps not the real issue here, Adam, right? The real issue is whether we have faith that the justices are living according to the rules, right? Whether they are unbiable and conforming to the law. And I think what we're learning here is that there really isn't a practical scenario in which these rules get enforced anytime soon beyond the justices' own decision to follow the rules, other than the pressure they might be facing from all the journalism that we have been describing here. I mean, there's now kind of a full-time industry of investigations going on into their behavior.

And the question is, is that going to be sufficient to change anything? So a few things. The bar shouldn't be, am I complying with the law? The bar should be, am I holding myself to the highest possible ethical standards? R should be, am I holding myself to the highest possible ethical standards because I have life tenure on the United States Supreme Court and nobody should be able to question my judgment. So there should be some power of shame. There should be some power of saying, you know, late night comedians are making fun of me. Maybe they have a point. The average American thinks it's unse hang out in the Walmart's parking lot with ordinary people.

And that's, you know, that's a great look. But it turns out that's not the only look. So maybe put aside mechanisms and separation of powers and ethics, rules and statutes. Maybe what we can hope for is what these revelations will cause the court to do. Maybe I'm too optimistic is to take stock and just be better. Just present yourselves to the American people as a body that's not capable of being influenced by outlandish gifts from billionaires. Well, Adam, thank you very much. We appreciate it.

Thank you, Michael. Since we spoke with Adam, new questions about the conduct of Supreme Court justices have arisen. The Washington Post reported that in 2012, a prominent conservative activist arranged for Justice Thomas' wife, Ginny, to receive $25,000 from a nonprofit with business before the court. Paperwork reviewed by the Post showed that the activist sought to conceal the fact that the money was intended for Mrs. Thomas, instructing that there be, quote, no mention of Ginny. Meanwhile, the Daily Wire reported that Justice Sonia Sotomayor declined to recuse herself from multiple copyright infringement cases involving the book publisher Penguin Random House, despite the fact that the publisher has paid Sotomayor millions of dollars to write a series of books.

We'll be right back. Here's what else you need to know today. We are here to crown a king. And we crown a king to serve. In a solemn ritual that stretches back more than a millennium, Charles III was crowned as king on Saturday after serving as the designated successor for longer than anyone in the history of the British monarchy. longer than anyone in the history of the British monarchy. I, Charles, do solemnly and sincerely, in the presence of God,

profess, testify, and declare that I am a faithful Protestant, and that I will, according to the true intent of the enactments which secure the Protestant succession to the throne, uphold and maintain the said enactments to the best of my powers according to law. During the service, the first coronation since that of his mother, Queen Elizabeth II in 1953, Charles was anointed with holy oil and fitted with a crown that features 2,868 diamonds,

269 pearls, 17 sapphires, and 11 emeralds. God save the king! God save the king! Moments later, the Archbishop of Canterbury invited the British people to celebrate their new king. Today's episode was produced by Mary Wilson, Rob Zipko, and Nina Feldman, with help from Will Reed and Claire Tennesketter. and Nina Feldman, with help from Will Reed and Claire Tennesketter. It was edited by Rachel Quester, with help from Lisa Chow and Mark George. Fact-checked by Susan Lee. Contains original music by Dan Powell and Marion Lozano, and was engineered by Chris Wood. Our theme music is by Jim Brunberg

and Ben Landsberg of Wonderly. That's it for The Daily. I'm Michael Barbaro. See you tomorrow. you