Gabe Roth: Supreme Court ethics lapses aren’t a partisan issue

Ethics reform at the Supreme Court is not a partisan issue. Nor is it a cynical attempt to shame or bully the court. It’s true that the justices most in the news for ethical lapses — Clarence Thomas and Samuel Alito — are staunch conservatives. But liberal justices have had their issues, too.

Pointing this out isn’t “both-sidesing” the ethical question. Rather, it should remind skeptics of reform that the goal is to raise the entire court’s battered standing — something that should be front-of-mind as the justices release their annual disclosures.

Consider the late liberal heroine Ruth Bader Ginsburg. In 2016, the justice called then-presidential candidate Donald Trump a “faker” and said she’d consider moving to New Zealand if he were elected. She later apologized, but even then — before most Americans knew about Thomas’s penchant for lavish vacations or Alito’s for controversial flags — some lawmakers, editorial boards and advocacy groups either called for her recusal in cases involving Trump or called on the court to adopt an enforceable ethics code. They were right to do so, and the lack of a response from the Court or from Congress then was inexcusable.

Staying with Ginsburg, the justice accepted two major cash prizes in 2019: $1 million from the Berggruen Institute, a Calif.-based think-tank, and $27,000 from a group called Jewish Culture in Sweden. (The year prior she turned down $1 million from Israel’s Genesis Prize Foundation, accepting a cash-free Lifetime Achievement Award instead.) Ginsburg donated the Berggruen and JCS money to charity, but that doesn’t change the fact that judiciary regulations forbid the acceptance of such large honoraria, even if the money’s to be donated. What’s more, the three organizations each presented the justice with physical gifts — crystal, bronze or glass-blown sculptures, respectively — that went unreported on her financial disclosures, though all appear to be worth more than the gift-reporting threshold at the time of $390.

Ginsburg isn’t the only liberal to fail to disclose a valuable trophy. In 2014, Thomas, Alito and Sonia Sotomayor were honored by their alma mater, Yale Law School, with the Award of Merit, a glass medallion in an oak base valued at $530. Thomas and Alito reported it, but Sotomayor did not. Nowadays also a well-compensated author, Sotomayor has always disclosed her book advances and royalties, but only after a months-long investigation last year did the public learn her staff was using the prestige of her office to try to boost book sales — clearly an ethics violation.

During his last decade on the court, Stephen Breyer, a Clinton appointee, was one of only three justices to own individual stocks. Yet Breyer failed to recuse himself from cases involving companies whose shares he owned, including United Technologies Corp. and Johnson Controls. What’s more, Breyer, along with Ginsburg, took free trips on private planes, which they either didn’t report or erroneously reported under “reimbursements” and not “gifts.”

Elena Kagan, an Obama appointee, did not disqualify herself from cases involving the Affordable Care Act — President Barack Obama’s signature health care law — even though when she was the Obama administration’s solicitor general, Kagan had been charged with defending that law in court.

Even Ketanji Brown Jackson, a Biden appointee, missed a recusal (albeit one of very little consequence) and omitted information from her disclosures.

As a principle, it’s not hard to understand why Americans want all nine justices, regardless of who appointed them, to be ethical, transparent and accountable. Poll after poll confirms this.

Yes, there are some calling for drastic changes to the Court because they don’t like the outcomes of certain cases. But helping the court become a modern, respected institution, where none of the justices’ characters or motivations is questioned, should be a bipartisan goal at a time when the pillars of our democracy are on shaky ground.

The justices should not be permitted to accept gifts above a nominal value.

They should not own individual stocks.

Stronger penalties for errors and omissions on financial disclosures should be adopted.

And when there are allegations of law-breaking — both Thomas and Jackson have been accused of late — neutral arbiters, and not members of the judiciary who invariably close ranks, should be charged with carrying out any investigation.

Like lower court judges, all nine justices should be required to regularly update their conflict sheets (a list of litigants that might trigger a recusal). When they recuse, they should offer the public an explanation. And there should be an office within the court that conducts periodic ethics training for the justices and helps the nine navigate questions of propriety in an honest, consistent way.

None of these reforms would change the structure or function of the Court, and they’d apply equally to conservative and liberal justices.

Sure, it’s difficult to compare the decades of largesse — valued at millions of dollars — accepted by Thomas to smaller lapses like an unreported trophy. But the point is not the scale of the violation. It’s whether for the good of the court and the good of the country the justices should abide by the most stringent of ethical standards. That shouldn’t be a controversial position.

Gabe Roth is the founder and executive director of Fix the Court, a nonprofit group that advocates for reforms of the federal court system.

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