Clarence Thomas and the Case of Supreme Court Ethics: QuickTake

US Supreme Court Justice Clarence Thomas is under scrutiny over his acceptance of financial largesse from Harlan Crow, a Texas billionaire who supports conservative business causes. Thomas didn’t disclose trips paid for by Crow or the sale of property to Crow, as required under post-Watergate ethics laws that also apply to presidents, members of Congress and some other federal officials. Yet there is little chance Thomas faces recourse, because unlike other US branches and agencies, the Supreme Court has no code of conduct for justices, and the constitutional system provides few tools for addressing alleged misconduct by members of the nation’s highest court.

1. Who writes government codes of conduct?

For the most part, each branch of the US federal government is responsible for policing its own ethics. The administrative branch, which includes the White House, is subject to the Office of Government Ethics, whose director is appointed by the president, subject to approval by the Senate. In the legislative branch, both the Senate and the House of Representatives have ethics committees that consider alleged violations by members, and the House additionally has an Office of Congressional Ethics. As for the judicial branch, judges in federal district, appellate, and bankruptcy courts have been guided by a code of conduct since the 1970s. It’s not intended to be a strict set of rules that address every ethical dilemma, but meant to provide guidance.

2. Doesn’t the judicial code of conduct cover the Supreme Court?

No. In his 2011 annual report on the judiciary, Chief Justice John Roberts said justices consult the lower courts’ code of conduct, along with “a wide variety of other authorities to resolve specific ethical issues” — but that the Supreme Court itself “has had no reason to adopt the Code of Conduct as its definitive source of ethical guidance.” Justice Elena Kagan said at a 2019 House hearing that a Supreme Court specific code was being “very seriously” considered. But no code has been proposed or implemented. Democratic members of Congress have introduced legislation that would require the federal courts’ policy making bodyto enact a code of conduct that applies to the Supreme Court as well as to lower courts.

3. Can Congress impose an ethics code on the justices?

The answer “is not clear cut,” said William Yeomans, a former chief counsel on the Senate Judiciary Committee. That’s because an attempt by Congress to regulate the Supreme Court could be seen as violating the doctrine of separation of powers. Roberts wrote in his report that the Constitution created the Supreme Court but gave Congress the power to establish lower federal courts; under that line of thinking, the Supreme Court is a separate branch of government. On the other hand, Yeomans said, precedent and past practices suggest “Congress has a lot of leeway to regulate how the justices behave.” Congress regulates the size of the court, the salaries of justices and the start of the term. A federal statute sets out when federal judges, including members of the Supreme Court, must recuse themselves from a given case for a conflict of interest. Republicans have fiercely opposed past proposals to require the Supreme Court to adopt an ethics code and have largely stood united in defense of Thomas.

4. What are the accusations against Thomas?

Thomas and relatives sold three Georgia properties that include Thomas’s boyhood home to GOP mega-donor Crow in 2014, ProPublica reported. The report of money flowing directly to the high-court justice from the Texas real estate magnate followed other disclosures about luxury travelthat Thomas and his wife, Ginni, accepted from the Crows, including trips on the donor’s yacht and private jet. Thomas defended the decision not to disclose, saying in a rare public statement that he was advised early in his Supreme Court tenure that he didn’t have to report the trips.

5. Can a Supreme Court justice be removed from office?

Since they receive lifetime terms and never have to seek reelection or reappointment, justices can be unseated only by the same impeachment process — charged by the House, convicted by the Senate — that applies to US presidents. Impeachment of a Supreme Court justice has been attempted only once in the nation’s history, and it didn’t go well. In 1804, the House impeached Justice Samuel Chase, a staunch Federalist who failed to tone down his partisan rhetoric after President Thomas Jefferson’s Republican allies took control of Congress. Charges included refusing to dismiss biased jurors and excluding or limiting defense witnesses in two politically sensitive cases, according to a summary on the Senate’s website. Chase argued at his Senate trial that the charges were politically motivated. Neither count against him received the two-thirds supermajority needed to convict. Even in the (unlikely) event that the Republican-controlled House passed an impeachment article against Thomas, there would be little chance of a two-thirds-majority vote to convict him in the closely divided Senate.

6. Does anybody hold justices accountable?

Maybe the court of public opinion. In 1969, Supreme Court Justice Abe Fortas resigned under the threat of impeachment after a magazine reported he accepted a $20,000 fee by the family foundation of a man being investigated for stock manipulation — returning it only after the man’s indictment. Fortas denied any wrongdoing but he became the first and only justice to resign rather than face impeachment.

The Reference Shelf

• ProPublica’s stories on Thomas’s vacations paid for by Crow and about Crow’s purchase of property from Thomas.
• Chief Justice Roberts’s 2011 year-end report, on ethics and the Supreme Court.
• The home page of the Judicial Conference of the US, which makes policies for federal courts.
• A biography of Thomas by Oyez, a clearinghouse of information about the Supreme Court.

To contact the reporters on this story:
Kimberly Robinson in Arlington at krobinson103@bloomberg.net;
Lydia Wheeler in Arlington at ldavenport15@bloomberg.net

To contact the editors responsible for this story:
Sara Forden at sforden@bloomberg.net

Seth Stern, Elizabeth Wasserman

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