First, Thomas. Now, Alito. SCOTUS Has An Ethics Problem.
Fred Wertheimer’s Weekly Note | June 22, 2023
For some inexplicable reason, the Justices on the Supreme Court have strongly resisted applying the same ethics rules to themselves that apply to all other federal judges.
It is as if they are saying to the American people, “Don’t worry, trust us. We would never do anything unethical or wrong.”
There is a dangerous arrogance in that attitude and a failure to recognize a basic ethics principle – that the appearance of impropriety is just as much a problem as impropriety itself.
Ethics rules exist for executive branch officials, elected officeholders, and lower court judges to protect against both improper conduct and the appearance of such conduct.
These rules must also apply to Supreme Court Justices.
This week, ProPublica published an explosive story about serious ethics problems for Justice Samuel Alito. It detailed how Justice Alito had taken a fishing trip to Alaska in 2008 and how billionaire Paul Singer, a major GOP donor, had flown Alito to Alaska on Singer’s private plane at no cost. The plane trip would have cost Alito an estimated $100,000 one way if he had chartered the flight himself. Alito also received accommodations, food, and wine at no cost on the trip.
Alito never disclosed any of this.
Alito apparently violated federal financial disclosure rules which apply to all federal officials, including Supreme Court Justices. Those rules require the attributed costs of Alito’s portion of the flight to be disclosed. Alito also may have violated disclosure rules by failing to disclose the costs of the lodging, food, and wine provided to him.
Years later, according to ProPublica, Alito failed to recuse himself from participating in a case of financial significance to Singer.
Justice Alito rejected ProPublica’s request for a response to their investigation. Instead he wrote an op-ed in the Wall Street Journal and ineffectually defended his actions, without any apparent recognition of the ethics problems he has caused for the Court.
In April, ProPublica published an investigation dealing with Justice Clarence Thomas and the free luxury vacations and other gifts he received over a 20-year period from billionaire Republican donor Harlan Crow. None of this was disclosed by Thomas including the luxury cruises, private flights, and other vacation trips he took – all of which may well have been required to be disclosed in his financial disclosure reports.
Crow also purchased two houses from Thomas, and then agreed to let Thomas’s mother live in one of them at no cost. Crow also paid the private school tuition for a student Thomas has described as a person “he is raising as a son.”
None of this was disclosed or publicly known until the ProPublica investigation.
Lurking on two of the all-expenses-paid trips that Thomas and Alito took was Leonard Leo, who has received an unprecedented $1.6 billion donation to continue his work to stack the courts with ideologically conservative jurists. Leo played a pivotal role in the selection of the three Supreme Court Justices appointed by former President Trump.
A Quinnipiac poll this week found that only 30 percent of registered voters approve of the Supreme Court, the lowest approval rating for the Court since Quinnipiac started asking the question.
The Supreme Court needs public confidence and credibility if it is to properly play its role in our constitutional system.
Two developments are seriously damaging the Court.
First, it has become such a right-wing ideological body that many see it as a third political branch of government rather than an independent judicial body.
Second, the Thomas and Alito scandals call into question the integrity of the Court.
Under the leadership of Sen. Sheldon Whitehouse, the Senate has been moving to pass legislation that would require the Supreme Court to establish new ethics rules for itself. But even if the Senate acts, the MAGA-controlled House is unlikely to follow suit.
So, it is up to the Court to act.
Chief Justice John Roberts can no longer sit idly by while the Supreme Court becomes a national scandal. He can no longer reject taking action on an ethics code for Justices and appropriate oversight.
Chief Justice Roberts must take the lead to restore the integrity of the Supreme Court and his like-minded colleagues must join him.
It is a singular test of Roberts’s leadership of the Court.
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Fred’s Weekly Note appears each Thursday in Wertheimer’s Political Report, a Democracy 21 newsletter. Read this week’s and other recent newsletters here. And, subscribe for free here and receive your copy each week via email.
