Justice Thomas's Corrupt Behavior: Why SCOTUS Needs a Binding Ethics Code

The question whether the Supreme Court should be subject to a binding ethics code with a real enforcement mechanism has heated up. President Biden and other high level Democrats have supported requiring such a code. Most Republicans oppose it. Last year, the Justices issued a code of sorts but as CNN reported at the time: "While the justices reiterate in the code they should 'maintain and observe high standards of conduct in order to preserve the integrity and independence of the United States,' they fail to explain how the code would work and who would enforce it, and acknowledged they had more work to do, including on financial disclosures."

That code is not a real code.

Although I have been calling for an enforceable code of ethics for decades, many others have arrived at the same conclusion because of the gifts and travel received by Justices Thomas and Alito from billionaire Harlan Crow, justice-picker Leonard Leo, and others. But the gifts and the travel are a little bit of a sideshow compared to the completely unprecedented support of Justice Thomas and his family provided by Crow. It is not reasonably debatable that Thomas should never have accepted Crow's subidies for his family.

Crow paid for the private school tuition of Clarence Thomas's adopted son, supplemented Ginny Thomas's income when she was working for far right wing organizations such as the Heritage  Foundation, and financed the house that Clarence Thomas's mother lives in. This kind of enabling of a lifestyle that Thomas and his family cannot afford is not the same as providing an occasional gift. It is creating reliance and economic interests for the Thomas family on a wealthy billionaire whose financial fortune is affected by Supreme Court decisions. 

Thomas has accepted all this largesse, which would be unethical for just about any other public official in America. Imagine if Crow had lavished all this on a Senator or a Congressperson? But at least, if we knew about it, we could vote them out. Not so for Thomas, which is why an ethics code with teeth is so desperately needed for Supreme Court Justices. 

It is irrelevant whether or not Thomas would have voted differently without this extreme subsidization. The relevant standard for judges everywhere is the appearance of impropriety. Here we have actual, real life impropriety.

A lot of people question how and whether a binding ethics code could work when it comes to our highest Court, but other countries have not had this problem. Here is Germany's code, Here is India's code, which prohibits pretty much all gifts. There are many ways for us to solve this problem that are both fully constitutional and effective, and we have many examples to figure out the best approach.

My favorite model would be a panel composed of four court of appeals judges--two from each party-- and an expert ethics law professor as the fifth member. This group would have jurisdiction to hear claims of recusal and improper behavior. They must be appointed constitutionally but that problem can be solved in different ways. There are of course many other ways to accomplish this goal but some enforcement mechanism outside the Court is crucial

It is irrelevant whether Congress can simply require such a code. Congress could suggest to the Court that this plan will be adopted unless the justices come up with their own that is equally effective. If the Justices refuse, it is completely constitutional for Congress to cut the Court’s budget as much as it wants and in any way it wants as long as the Justices’ salaries are not reduced (which Article III prohibits). Maybe we should see how the Justices like only having enough money for one law clerk each or having heat and air conditioning only a few weeks a year. You get the idea.

Justice Thomas has not simply accepted a bevy of bounty from Crow over the years. He has allowed Crow to subsidize a family lifestyle unlike anything we have ever seen with a federal judge of any kind. It is wrong. It is unethical. And we have to stop this from happening again in the future. The rule of law depends on it.