OP-ED |

Supreme Court’s Greatest Decision Yet: How to Be Ethical

With record low public approval rates, America’s highest court faces an existential crisis, with Clarence Thomas front and center.

Photo by U.S. Department of Agriculture under Public Domain Mark 1.0

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Over the summer, the approval rating of the U.S. Supreme Court bottomed out at a record low of 40 percent in a nationwide Gallup poll, representing widespread dissatisfaction felt by many across America with its highest court.

The court’s losing streak began in 2021 when it upheld a restrictive abortion law in Texas that culminated with the historic overturning of Roe v. Wade in 2022, as more than a dozen states imposed near-total bans on abortions. 

Before that, from 2017 to mid-2021, Gallup reported the court’s approval rating at 49 percent, or higher. On average, its rating has stood at around 51 percent for the past 23 years, with a high of 62 percent in June 2001 and September 2000, the year Gallup began taking the poll. 

The Supreme Court’s dismal rating this summer followed controversial rulings to strike down affirmative action in university admissions; deny student loan debt relief; and reverse a decision by a lower court to uphold Colorado’s public accommodations law – which, as Power Corridor detailed in a prior issue, now allows some business owners to refuse service to same-sex couples.

Source: Gallop

Bottom line: Public opinion of the court has never been glowing. 

Yet the Supreme Court’s rating falling to its most enduring nadir this year also stemmed from investigative journalists turning up evidence that a number of Supreme Court justices violated ethics rules by accepting unreported “gifts” from billionaires – many of whom are major donors to causes with business before the court. 

At the top of the list of offenders has been Supreme Court justice Clarence Thomas – the longest-serving justice on the court – who has received millions of dollars of gifts from a tight-knit circle of right-wing billionaires who also happen to share the same conservative ideology that undergirds many of Thomas’s Supreme Court decisions.

While the shoes just keep dropping on this story, the latest tally of gifts to Thomas come from such billionaires as Berkshire Hathaway’s David Sokol; businessman H. Wayne Huizenga; and oil baron Paul Novelly. These individuals and others have showered Thomas with approximately 38 destination vacations, 26 trips on private jets, eight trips by helicopter, a dozen VIP passes to various sporting events, overnight stays at pricey resorts both in the U.S. and overseas, and even a standing invitation to a private golf club.

If that was not startling enough, don’t forget revelations earlier this year that Thomas also accepted hundreds of thousands of dollars of gifts in the form of superyacht cruises, private jet travel and lavish vacations for decades, from conservative billionaire real estate magnate Harlan Crow (who also collects Nazi memorabilia and decorates his Texas home with statues of fallen despots, like Stalin and Mao — not at all troubling.)

Many of these news stories have been broken by nonprofit news organization ProPublica, which further learned that Crow funded the private school tuition of Thomas’s grandnephew, reportedly running around $6,000 a month. It also discovered that Crow purchased the home of Thomas’s mother, sinking tens of thousands of dollars into the property, and paying Thomas and his relatives in an undisclosed, related real estate deal, representing what the publication called “the first known instance of money flowing from the Republican megadonor [Crow] to the Supreme Court justice [Thomas].” 

As one White House ethics lawyer told ProPublica, “This is way outside the norm. This is way in excess of anything I’ve ever seen.”

Other reports followed, chronicling how another conservative Supreme Court justice, Samuel Alito, flew on the private jet of hedge fund billionaire Paul Singer as part of an Alaska vacation before he later ruled in Singer’s favor in a Supreme Court case that reaped Singer’s hedge fund $2.4 billion. And how one of the court’s most liberal justices, Sonia Sotomayor, may have inappropriately used staff to push hundreds of thousands of dollars of sales of her books. Sotomayor has been criticized in the past for not recusing herself from cases involving her publisher, Penguin Random House, which, according to her financial disclosures, has paid her more than $3 million.

Thomas defended his lack of reporting gifts and trips from Crow, saying he’d simply been accompanying close friends on “family trips,” and that he had been “advised that this sort of personal hospitality from close personal friends [was] not reportable” to the Supreme Court.

Legal experts have largely disagreed that justices’ failure to report gifts, trips, favors or deals that have financially benefitted them is allowed under federal ethics guidelines.

Alito gave a lengthy response to the appearance of ethical breaches in an editorial in The Wall Street Journal, explaining that recusing himself from Singer’s case “would not have been required or appropriate,” emphasizing there was no corruption or undue influence.

Late last week, more revelations cropped up about Thomas, showing that he also participated secretly in donor events for the highly conservative billionaire Koch brothers for at least a decade – even as the Koch donor network brought cases before the Supreme Court.

In response, Senate Democrats are calling for a Supreme Court ethics bill and Republicans are blasting the press exposés of Thomas and Alito as an attack on the court’s conservative majority. Meanwhile, media outlets are mostly toeing partisan lines, with conservative news organizations vehemently defending the conservative justices, and more progressive media lambasting them for flouting federal ethics standards.

A number of conservative online news organizations have argued that the disclosures of Thomas and Alito’s apparent ethics violations and conflicts of interest amount to “leftist attacks,” hair-splitting over ethics rules and even “fake news.”

Conservative media also made the argument that “no Supreme Court justice in modern history has suffered as many years of vicious personal attacks as Thomas, who is the only black justice on the court, who was raised in poverty, but yet rejects the left’s insistence that the Constitution must be interpreted in a manner to empower government to compensate for the failings of history related to race.”

More than 100 former clerks of Thomas signed an open letter insisting his integrity is “unimpeachable” and stating his “independence is unshakeable,” characterizing reports about his taking millions of dollars of gifts as a “malicious” affront to his ethics and character.  

On social media, multiple commenters have opined that the media was wrong to attack justices’ “social life” for including like-minded, wealthy and successful friends, pointing out that it cannot be proven Thomas or Alito ruled in accordance with their benefactors’ beliefs and not their own, when it is possible they also hold the same beliefs.

Among the more liberal media, Thomas was roundly portrayed as a villain for taking gifts and accepting financial favors without reporting them.

On Twitter, University of Alabama legal analyst, Joyce Alene, wrote, “The whole point of disclosing conflicts and recusing is to maintain public confidence in key democratic institutions, like the court. It’s clear that the integrity of the branch of government he serves in is not important to Justice Thomas.”

While much of the response to justices’ lack of disclosure – to their own enrichment – has been predictably partisan, the impact of news coverage on Thomas’s reputation in particular has been noteworthy, not just because the Supreme Court’s public approval rating has plummeted to its lowest level on record, but because views on Thomas have specifically shifted to not become more negative, but more polarized.

Interestingly, the largely negative headlines caused conservatives to hold a more positive view of the justice, with a 67 percent favorable rating, according to Gallup, while 76 percent of liberals reported a more unfavorable view of Thomas.

The poll highlights how Americans remain at far ends of the spectrum on issues surrounding the ethical behavior of Supreme Court justices, especially relative to their rulings, across the political minefield. 

Controversy has stalked the Supreme Court since its inception more than 200 years ago, but its ethical issues do not rest solely on conservative or liberal justices’ behavior, says Gabe Roth, executive director of New York nonpartisan watchdog group Fix the Court. Instead, he says, it is a “global” conundrum.

According to research by Fix the Court, “While none of the justices has committed a removal offense, all nine of them are culpable of various ethical oversights, from leaving assets off their annual financial disclosure reports, to speaking at partisan fundraisers, to ruling on cases despite credible conflicts of interest.”

The nine justices of the Supreme Court are the only federal judges not bound by the code of conduct for U.S. judges, the group says. The code goes beyond the basic ethics laws enacted after the Watergate scandal to govern recusals, as well as justices’ political activities.

Although the justices could “easily and formally adopt the code tomorrow if they so choose,” says Fix the Court, “legal scholars believe that since Congress can legislate institutional changes to the high court, it may use its statutory authority to compel acceptance of the code.”

Says Roth, “The ethics issue is not Clarence Thomas flew on a private plane and vacationed in a yacht. The ethics problems at the Supreme Court are clearly much greater than those events with that one justice.”

Sheldon Whitehouse, Democratic Senator from Rhode Island and chairman of the Senate Judiciary Courts Subcommittee, wrote a letter to Supreme Court Chief Justice John Roberts this month about the lack of a formal process for receiving or investigating ethics complaints.

In it, Whitehouse took the justices to task for their inaction on what appears to be serious and repeated ethical breaches. “As you have repeatedly emphasized, the Supreme Court should not be helpless when it comes to policing its own members’ ethical obligations,” Whitehouse wrote to Roberts. “But it is necessarily helpless if there is no process of fair fact-finding, nor independent decision-making. 

“I request that you as chief justice, or through the judicial conference, take whatever steps are necessary to investigate this affair and provide the public with prompt and trustworthy answers.”

The views expressed in this op-ed are solely those of the author and do not necessarily reflect the opinions or policies of The Daily Upside, its editors, or any affiliated entities. Any information provided herein is for informational purposes only and should not be construed as professional advice. Readers are encouraged to seek independent advice or conduct their own research to form their own opinions.