The Senate Judiciary Committee is holding a hearing Wednesday to review the ethics requirements of federal judges. This comes alongside a near-daily trickle of revelations about some US Supreme Court justices receiving hundreds of thousands of dollars-worth of gifts from high-profile Republican donors.
The justices don’t seem to think they should be accountable for such matters. Recently, all nine justices signed off on a letter saying they shouldn’t be held to the same standards that apply to all other judges, politicians, and public officials—for example, being prohibited from receiving gifts from parties appearing before the court.
Some people were surprised that the three liberal justices—Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—would sign off on this letter. After all, the spotlight has been on the conservative justices—Clarence Thomas and Neil Gorsuch, and Chief Justice John Roberts, at least so far—who have been caught up in controversies of undisclosed private jet trips and private school tuition, selling property to people who appear before the court regularly, and spouses receiving tens of millions of dollars in commissions.
But people shouldn’t be surprised. For starters, being a Supreme Court justice is a position of great privilege that a person can quickly get used to. Most justices spend their four-month summer vacation receiving various benefits, whether it’s teaching in the locale of their choice in Europe or simply being treated like royalty as they make a speech circuit.
It’s even less surprising if you know the court’s record in recent years in cases involving bribery, corruption, and disclosure of financial exchanges more generally.
The Roberts court has been mostly very tough when considering the rights of criminal defendants. It has read the “exclusionary rule” down to an “exclusionary standard” and approved of standardized strip searches of people arrested for minor traffic offenses, even those wrongly arrested.
But the court has ruled quite differently when it comes to the accountability of white-collar criminals.
Just days after all justices signed the letter to the Senate digging in on their ethics stance, the oft-divided court spoke unanimously once again in the Percoco decision to loosen restrictions on people with great power—including the power to dip their hands into the public purse.
Last week, in Percoco v. United States the court ruled in favor of Joseph Percoco, who was convicted on multiple counts of receiving bribes by virtue of his office. Percoco was a former senior aide to then-New York Governor Andrew Cuomo. When Cuomo ran for reelection in 2014, Percoco became his campaign manager. But it was always understood that Percoco was coming back to government service. In fact, he continued to use his government office and government telephone.
And it was on that telephone at his government desk that he arranged to receive multiple bribes, constituting roughly $300,000. One payment in particular was before the court: Percoco was paid $35,000 by a developer to help him avoid having to participate in a labor peace agreement with local unions.
There is little doubt that in return for that money, Percoco called the agency head, who reported that he was receiving “pressure” from his “principals.” No surprise, the next day state officials reversed the requirement that the developer needed to reach an agreement with the unions.
The law says no one can accept bribes or kickbacks in return for selling official power. But Percoco argued that he shouldn’t have been convicted because he wasn’t officially holding power, as he had done when he was an aide to Cuomo, and as he was again shortly after receiving the bribes. But at the moment of the bribery, he claims he was just a member of the public.
At oral argument, both Thomas and Kagan asked Percoco’s advocate what would happen if the campaign position was just a temporary ruse to avoid technically being employed for the moment of the bribe. And what if he only held that position for, say, one minute?
Nevertheless, the justices overturned Percoco’s conviction, saying it wasn’t clear enough that Percoco was using the power of his office when he received the bribes. Doing so is part of a consistent trend of the court making it harder to hold corrupt officials accountable.
For instance, in U.S. v. Sun Diamond Growers in 1999, a growers association gave $6,000-worth of gifts to then-Secretary of Agriculture, Mike Espy. The association needed the EPA to not ban a particular pesticide and, sure enough, that decision was made.
The Sun Diamond Growers court held that giving gifts to a person because of their capacity to exercise power is not enough, there has to be an explicit quid pro quo. But this decision just protects bribery as long as it occurs regularly enough, and as long as people are savvy enough to not say the quiet part out loud.
Even when they do, the court steps in to protect corrupt politicians. In McDonnell v. U.S., in 2016, Former Virginia Governor Bob McDonnell and his wife, Maureen, faced charges of public corruption and bribery after accepting $175,000 in gifts—ranging from dresses to Rolex watches to paying for their daughter’s wedding.
The sometimes cringeworthy gifts were from businessman Johnnie Williams, who wanted Virginia’s universities to conduct research on a “nutritional supplement” he was hawking. McDonnell set up the meetings and hosted events for the businessman at the governor’s mansion, among other favors. Straightforward enough, right?
In this case, Williams himself testified that the gifts were given as a quid pro quo. And yet, Chief Justice Roberts said the governor’s actions weren’t clearly enough official acts—seemingly Roberts thought Williams wasn’t getting enough for his money.
Even Jack Abramoff, the former superlobbyist who ended up in prison, said of this ruling: “I continue to be concerned by what seems to be a lack of understanding on the part of the justices that a little bit of money can breed corruption.”
Jeffrey Skilling, CEO of Enron when it collapsed, was also the beneficiary of the Supreme Court’s stunted view of corruption. He was charged under the honest services fraud statute, which prohibits “a scheme or artifice to deprive another of the intangible right of honest services.” The court decided this was too vague and narrowed the legislation to only cover, once again, explicit bribery and kickback schemes. Skilling got 10 years shaved off his sentence.
Essentially, the Supreme Court is sympathetic to people who buy ingratiation and access, even considering such activities protected under the First Amendment’s Free Speech Clause. The court is concerned about hampering the ability of businesses to lobby politicians.
So perhaps everybody shouldn’t be so shocked that the justices themselves accept such gifts, and some don’t even feel the need to disclose them, as required by law.
Two of the justices most embroiled in financial controversies, Thomas and Gorsuch, wanted the court to go further in Percoco, saying the entire concept of “honest services” fraud is too vague and uncertain to ever hold someone accountable.
This court would likely say that when Tony Soprano says, “Go and do that thing to that guy,” that is too vague to hold him accountable, as long as that thing is giving money to someone in power.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Tonja Jacobi is professor of law and Sam Nunn Chair in Ethics and Professionalism at Emory University School of Law, where she specializes in Supreme Court judicial behavior and public law.
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