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  • Writer's pictureHampton Roese

The Necessity of Clearer Ethical Guidelines and Enforcement Mechanisms for Supreme Court

Justice Thomas faces ethical concerns over undisclosed gifts and trips

Clarence Thomas Under Fire for Accepting Gifts from Republican Megadonor

Recent reports have revealed that US Supreme Court Justice Clarence Thomas has accepted several gifts and trips from Republican megadonor Harlan Crow, raising concerns about potential violations of ethical principles. ProPublica's reporting on the issue revealed that Crow had provided Justice Thomas with a long list of undisclosed gifts, including a painting of Justice Thomas and his wife, a $19,000 bible that belonged to Frederick Douglass, and a $105,000 donation to Yale Law School for the “Justice Thomas Portrait Fund.”


Among the gifts that raised alarm among legal experts were several expensive trips taken by Justice Thomas over the past two decades, including a trip to Indonesia on Crow's private jet and a 162-foot yacht, worth more than half a million dollars. Justice Thomas and Crow have both stated that they have been close friends for more than a quarter-century and that these personal gifts are not reportable under current guidelines.


Justice Thomas' acceptance of these gifts raises ethical concerns, especially as a recent investigation by The Wall Street Journal found that 131 federal judges had failed to comply with the Code of Judicial Conduct by ruling in cases with financial conflicts of interest. This has prompted the American Bar Association to pass a resolution urging the US Supreme Court to adopt ethics rules similar to those for all other federal judges.


What is the History of the Federal Code of Conduct

In 1973, the conference collaborated with the American Bar Association to adopt the current Code of Conduct, proposed by Chief Justice Warren Burger. Since then, it has been revised eight times. The federal code applies to various judges, except for the Justices of the Supreme Court. The federal code offers advisory guidance to judges and covers judicial integrity, independence, diligence, impartiality, and avoidance of impropriety. The guidance is provided using ethical canons.


Why Supreme Court Justices Are not Required to Follow the Code of Conduct

Supreme Court justices are expected to follow the same code of conduct as federal judges. However, unlike other judges, there is no enforcement mechanism in place to ensure they comply. For instance, if a district court judge violates the code, there are procedures to report, investigate, and discipline them. But, since there is no one above the Supreme Court, there is no enforcer.


Throughout history, federal judges have been more commonly subjected to impeachment proceedings than Supreme Court Justices. According to a 2015 report, 15 out of 19 officials impeached by the House were federal judges, and of the 16 trials conducted in the Senate, all eight of those convicted were federal judges. The only Supreme Court Justice to face impeachment was Samuel Chase, who was acquitted in a politically charged trial in 1805.


The Importance of Ethics Rules and Enforcemenet

Over the last few years, several factors have sunk the confidence in U.S. Supreme Court to historic lows; but an enforceable code of conduct could help. Reports of wealthy individuals trying to buy influence with the Supreme Court, along with judges being treated to lavish gifts and events, have created an aura of corruption and undermined the court's credibility.


This lack of enforceability is unique to the U.S. system. Other high courts around the world have found solutions to this problem. One option is to convene a group of Court of Appeals judges, such as chief justices, to judge the Supreme Court. The Canadian judiciary has an internal ethics enforcement mechanism known as the Canadain Judicial Council. The Council is responsible for investigating complaints against judges and recommending disciplinary action where appropriate.


Another is to establish a subcommittee within the Supreme Court to handle these issues. All other high courts have dealt with the challenge of having no higher court to evaluate their conduct and have implemented mechanisms to address it. The U.S. Supreme Court stands alone in lacking an enforcement mechanism.


Nancy Gertner - Retired Federal Judge:


“Human beings need an enforcement mechanism. We all do. It’s not just enforcement for enforcement’s sake; it’s enforcement for the legitimacy of the institution. If the institution doesn’t have an enforceable way of policing itself, then it is not to be trusted.”


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