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Much has been written here and elsewhere about the weak federal ethics guardrails currently in place for members of Congress and the executive branch. Not to be outdone, the judicial branch continues to suffer through its own ethics woes — particularly at the highest level.
One would hope that the U.S. Supreme Court would be able to boast air-tight ethics protections that help safeguard the court’s standing as a trusted institution with the American people. But despite some improvement last year with a more substantial, but still self-enforced, code of ethics, the highest court in the land remains mired in scandal of its own making. That might help explain the persistently low public approval ratings the court has seen in recent years.
The recent negative attention has primarily been driven by the actions of a few of its members. While failed financial disclosures, failure to recuse from certain cases, questionable actions involving book deals, and questionable trips have been a longstanding flaw from justices liberal and conservative alike, current conservative Justices Samuel Alito and Clarence Thomas have taken the ethical gray area to a supremely questionable level.
Alito in particular has drawn substantial negative attention as of late, particularly swirling around the way flags have been flown at two of his homes and the potential political messages related to the Jan. 6 attack on the U.S. Capitol that come with the way they were flown. We’re less concerned about the flag incidents themselves and more with the defiant tone that Alito has struck in response to multiple controversies.
And we’re most concerned with the failure of justices to more frequently recuse themselves when potential conflicts of interest arise, and the failure to fully disclose financial ties and trips connected to wealthy individuals and organizations with business before the court. Alito leaned heavily on the “reasonable person” standard within the court’s ethics code in his rebuke of calls for his recusal in Jan. 6-related cases because of the flag incidents. That provision in the ethics code states that justices should recuse themselves when a “reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.”
Let’s apply that standard to other actions from Alito and Thomas over the years. We’re quite confident that such a reasonable person would take issue with a Supreme Court justice accepting trips, school tuition for a family member, and even conducting a real estate sale with a billionaire who has been involved in cases before the court, and then failing to recuse themself from those cases, all of which Thomas has done (Alito has faced scrutiny for a luxury fishing trip with billionaire Paul Singer). Recently, the public found out about even more previously undisclosed private jet trips involving Thomas and billionaire Harlan Crow. The response from Thomas and a personal attorney remains woefully inadequate, as does the court’s effort to safeguard the trust of the American people.
If Chief Justice John Roberts and his colleagues want to improve their standing with the public, they should be listening to the perspective of former U.S. Court of Appeals Judge David Tatel, who was considered a past contender for the Supreme Court. In a recent memoir, Tatel, who is blind, discusses how he recused himself from a case dealing with whether the government should make different paper currency more identifiable for people with visual impairments.
“I didn’t have any doubt that I could decide the case,” he said, as reported by the New York Times, “but I was worried about the appearance.”
Time and time again, we have tried to emphasize that an appearance of a conflict of interest can be as damaging to public trust as an actual conflict. But something so clear to Tatel and the rest of us apparently remains obscured from certain members of the Supreme Court.
It is far past time for the Roberts Court, especially Justices Alito and Thomas, to stop scrambling for excuses for questionable behavior and instead err on the side of disclosure and recusal when potential conflicts arise. If the justices want to rebuild the integrity and public standing of the court, they need to start showing it.
