The Journal. - Is There an Ethics Problem at the Supreme Court?

Episode Date: June 28, 2023

The Supreme Court is heading into the final stretch of its current session and there are a number of cases with major social implications yet to be decided. But as we wait for decisions on student loan forgiveness and affirmative action, another major issue is hanging over the court. WSJ’s Jess Bravin discusses ProPublica’s recent investigations into alleged ethical misconduct of Supreme Court justices and what they could mean for the institution. Further Reading: - OPINION: Justice Samuel Alito: ProPublica Misleads Its Readers  - Harlan Crow’s Gifts, Financial Ties With Justice Thomas Under Fresh Scrutiny by Democrats  - Chief Justice John Roberts Asked to Address ‘Ethical Standards’ at Supreme Court  Further Listening: - Will Student Debt Get Canceled? The Supreme Court Decides.  Learn more about your ad choices. Visit megaphone.fm/adchoices

What's the vibe at the Supreme Court right now? Well, the vibe is anticipation. This is the end of the Supreme Court term. The last opinions are coming out. Typically, the most important cases, the ones that everyone's really looking at closely, come out at the end. That's our colleague Jess Braven. He covers the U.S. Supreme Court. And?

That's our colleague, Jess Braven. He covers the U.S. Supreme Court. And he's waiting for decisions on big issues like student loan debt and affirmative action. There's a lot to write about. I mean, but I will say this, you know, as someone who's covered the court now, I mean, I've only covered the court for 18 years. We've never focused on the conduct of individual justices the way that we are now. The reason for that focus is some new reporting that justices had received gifts from deep-pocketed friends without disclosing them. Things are heating up for the Supreme Court's longest-serving justice as Democrats call for Clarence Thomas to be held

accountable for his alleged ethical lapses. An exclusive resort in upstate New York, island-hopping around Indonesia via yacht, rides on a private jet, luxury vacations for a sitting Supreme Court justice. This time, it's Justice Samuel Alito under scrutiny for luxury travel paid for by a billionaire Republican megadonor. Justices Alito and Thomas have both said that their conduct didn't violate any rules. But concerns about ethical misconduct have put the Supreme Court in a tight spot. This is an institution that's under extraordinary scrutiny for the way that it's acting as an institution

and for the conduct of the members of the court themselves. So in some ways, it's a different vibe. It's not a thrilling, exciting, happy vibe at one first street. Welcome to The Journal, our show about money, business, and power. I'm Kate Leinbaugh. It's Wednesday, June 28th. Coming up on the show, the accusations of ethical misconduct that are rocking the Supreme Court. Summer is like a cocktail. It has to be mixed just right. Start with a handful of great friends.

Now, add your favorite music. And then, finally, add Bacardi Rum. And there you have it. The perfect summer mix. Bacardi. Do what moves you. Live passionately. Drink responsibly. Copyright 2024. Bacardi. It's trade dress and the bat device are trademarks of Bacardi and Company Limited. Rum 40% alcohol by volume. The focus on the conduct of individual Supreme Court justices started in April, after online news outlet ProPublica published a story about the relationship between

Justice Clarence Thomas and a conservative billionaire. ProPublica reported that for more than a decade, Thomas received expensive gifts from real estate developer Harlan Crowe. Harlan Crowe has been very active in promoting Clarence Thomas publicly, but privately he also has taken Clarence Thomas on luxurious vacations around the world and hosted him in a private lodge and even did a real estate transaction with Clarence Thomas and his relatives buying the house where Justice Thomas's mother lives. That was not disclosed on the annual financial forms that justices are required to file for the public to examine. That was revealed in these ProPublica articles, and they caused sort of a firestorm, at least among Democrats, saying, why weren't these things disclosed? How did Clarence Thomas react to ProPublica's reporting? has reporting. Clarence Thomas issued a statement after an early pro-publica report saying that he believed he was not required to disclose travel paid for by Harlan Crowe because there is an exception for personal hospitality. When subsequent reports detailed other matters such as the real estate transaction, he simply has not responded. So he's made no public comments about these other disclosures

about his relationship with Harlan Crow. Harlan Crow told ProPublica that he extended hospitality to Thomas over the years, but that Thomas never asked for any of it. Under the rules at the Supreme Court, justices are required to disclose when they receive monetary gifts. But there was an exemption for personal hospitality, like a dinner or a weekend at a friend's house. So there are some basic requirements, and there are disclosure laws

that apply to the members of the Supreme Court as they apply to other judges and other federal officials. But they don't have the extra step that other courts have that goes into more detail about what is permitted and what is prohibited conduct. Each justice makes his or her own decisions about when they are required to disqualify themselves from a case and when they have to report various financial transactions. various financial transactions. And in the history of the Supreme Court, have justices gotten in trouble over ethical matters or their conduct? The Supreme Court is different from other branches of government because its members serve for life, and it's not really a stepping stone to something else. I mean, this is pretty much it. Unlike members of Congress or even senators, they're not worried about losing their job

in two years or six years, and they're not seeking campaign contributions. They don't have the same kind of financial pressures or incentives that politicians do. And therefore, we haven't really scrutinized them historically the same way we look at political officials. Thomas also noted that the disclosure obligations for all federal judges changed in March. Now, judges must disclose certain benefits provided by friends,

including stays at commercial properties and private jet trips. He said he intends to follow this guidance in the future. More than a month after the story about Thomas was published, Chief Justice John Roberts spoke at the American Law Institute. I want to assure people that I am committed to making certain that we as a court adhere to the highest standards of conduct. But Roberts suggested he had gotten the message. We are continuing to look at things we can do to give practical effect to that commitment.

Then last week, ProPublica published another story, this time about Justice Alito. Alito is one of the court's six conservative justices. He wrote the majority opinion in the case last year that overruled Roe v. Wade. that overruled Roe v. Wade. They ran a story involving a trip he took back in 2008 that was similar in a number of ways to the kinds of things that have gotten Justice Thomas under scrutiny. Back in 2008, the conservative billionaire Paul Singer, who's given a lot of money to conservative causes and institutions,

took a trip to a fishing lodge in Alaska, and Justice Alito went along for free in the private jet and stayed for free and fished and so forth. Really, the two issues are this. One, should this trip have been disclosed, right? Now, justices are allowed to accept freebies under some circumstances, but they are required in almost every instance to disclose them. So it's a question of whether or not this was disclosed.

Other justices confronted with similar situations have made those disclosures, and some of them were criticized for it, incidentally. Justice Ruth Bader Ginsburg took some trips that led to criticism, but we know about them and we were able to criticize them because she disclosed them. The second issue was that Singer, who funded the trip, was connected with companies that had cases before the Supreme Court. And Alito took part in those decisions. Should Alito have recused himself from those cases because he had accepted this gratuity from Paul Singer? So that was question two. So that's the ethical issues that ProPublica said their investigation raised. ProPublica asked Singer

for comment on the reporting. And a spokesperson for Singer said Singer never discussed his business interests with the justice. And at the time of the trip, neither Singer nor his companies had any pending matters before the Supreme Court. The spokesperson also pointed out that Singer didn't organize the trip. When ProPublica reached out to Alito for comment, he didn't respond. But he did have something to say. That's next. Uber Reserve. Good things come to those who plan ahead. Family vacay? Reserve your ride as soon as you book your flights. To all the planners, now you can reserve your Uber ride up to 90 days in advance. See Uber app for details. Need a great reason to get up in the morning?

Well, what about two? Right now, get a small, organic Fairtrade coffee and a tasty bacon and egg or breakfast sandwich for only $5 at A&W's in Ontario. ProPublica's reporters were set to publish their investigation into Alito's free luxury vacation. And before they did, they reached out to him for comment. So, like other news organizations, once they had done all their reporting for a story that clearly Justice Alito was not going to enjoy reading,

they went to him to ask for his response. So, what does Justice Alito do? Well, they went to him on a Friday and they contacted him and they sent him essentially a summary of what they had discovered and what they intended to say. And they asked him specific questions about it and they asked him for a response for them to include in their story. And so the court, public information office, told ProPublica that Alito had no comment. But it turned out that Justice Alito did have a response and did have an aggressive defense of his conduct, but he didn't give it to ProPublica. In fact, he published it as a newspaper op-ed before the ProPublica article was going to run. That newspaper was the Wall Street Journal.

Alito's piece ran in the opinion pages. And at the Wall Street Journal. Alito's piece ran in the opinion pages. And at the Wall Street Journal, the news and opinion teams have no contact with each other. So those of us in the news department did not know about this until we read it along with everybody else. But yes, he wrote it in the Wall Street Journal. the Wall Street Journal, and so I had the awkward role of having to write an article about an op-ed in the Wall Street Journal responding to ProPublica. What did Justice Alito say in his opinion piece? Well, Justice Alito's response was a defense of his own conduct. He said that he was not required to disclose this trip because it fell under this personal hospitality exception. But he said at the time, he understood

transportation to be part of the personal hospitality exception, so he didn't have to report it. And he also described the trip in some detail, suggesting it was not some incredible, the trip in some detail, suggesting it was not some incredible, you know, visit to a palace, but, you know, more rustic kind of thing. It wasn't like he was being treated so incredibly fantastically. And he argued that he didn't need to recuse himself from any cases that Singer was involved with, because Alito says he didn't know that Singer was connected to them. And has Alito said why he chose to give his side through a newspaper op-ed? Justice Alito has not stated why he chose to essentially, you know, spoil the scoop for ProPublica, but it's not that ridiculous to speculate why. By writing an op-ed that comes out before their story, he gets the platform all to himself for a while and gets to frame the issue as he

understands it. I think what's more remarkable is that this is a member of the United States Supreme Court, a justice of the Supreme Court, who is engaging in a kind of hardball publicity game against a news organization. And that's not something that we've really seen. But he is engaging with the press and then with the news media more like, you know, a politician typically might than a federal judge. How have lawmakers responded to these concerns about ethical disclosures? We're seeing this being treated largely as a partisan issue, as are so many things that might have not been viewed that way in prior periods.

So Democrats are talking about an ethical crisis at the court. So they are saying that this is just further evidence of decay at the court and there needs to be ethical standards adopted and it's a crisis. Republicans are saying, gee, you're just picking on conservative justices because they ruled against your view of the law. Do you think lawmakers are going to take any action or make any changes to ethics rules? Well, this is a divided Congress. Each chamber is very narrowly held by one party. And this is the kind of issue that really requires bipartisan buy-in to move forward. If there's going to be any movement, I think it's going to come from the court responding to the kind of pressure it's seeing in the press

and seeing from some lawmakers rather than there being any kind of legislative action to impose something on the court. What has this reporting on the justices' ethics done to the perception of the Supreme Court. I mean, the court has been politicized, if not by the justices themselves, by the politicians around them, by the politicians who appoint them and select them, by the kind of ways that politicians talk about them, by the way that the court has become an election issue far more than historically it has been. The Supreme Court today is viewed differently than it was five years ago or 10 years ago or 30 years ago as something that today is seen as more political and less august perhaps than it once was. And in the meantime,

we'll wait for tomorrow's decisions. Yes, June is such an exciting month for all of us, but the news profile of the Supreme Court is now a bit different than it used to be. We're focusing on how they behave as much as

what they decide. And that reflects the place we are in this country. That's all for today, Wednesday, June 28th. The Journal is a co-production of Gimlet and The Wall Street Journal. If you like our show, follow us on Spotify or wherever you get your podcasts. We're out every weekday afternoon. Thanks for listening. See you tomorrow.