Clarence Thomas, Samuel Alito and the crisis of confidence in the Supreme Court
The annual cascade of Supreme Court decisions this week will make lots of headlines, but polls show that Americans of all political stripes are increasingly troubled by the lack of a code of ethics for the high court.
Chief Justice John Roberts has more than once said the court is working on an ethics code for itself, but so far, crickets.
Meanwhile, investigative reporters are finding that Supreme Court conduct is rich ground to plow. Last week, ProPublica reported that Justice Samuel Alito failed to disclose that he had enjoyed an all-expenses-paid, high-end fishing trip to Alaska, complete with private jet travel, courtesy of hedge fund titan Paul Singer, a major Republican donor, who has been involved in 10 appeals to the Supreme Court.
Instead of responding to ProPublica's written questions, Alito did something no justice before him has done. He defended his conduct in an op-ed published on the editorial page of the conservative-friendly Wall Street Journal. In explaining why he did not recuse himself from a case in which Singer had ended up with a $2.4 billion windfall, Alito said that he had met Singer only casually at events attended by large groups. But as Indiana University law professor Charles Geyh told ProPublica, "If you weren't good friends, what were you doing accepting this" private jet trip? And "if you were good friends, what were you doing ruling on his case?"
Disclosures follow those about Thomas
And then, of course, there are the ethics stories involving Justice Clarence Thomas. What we now know is that for probably two decades, Thomas and his wife, Ginni Thomas, have gone on lavish trips around the globe paid for by his Republican megadonor friend Harlan Crow and that Crow paid the private school tuition for Thomas' grandnephew and bought properties owned by Thomas and his family. Thomas never disclosed any of this, as he was required to do under the disclosure provisions of the federal Ethics in Government Act, which applies to all federal judges, including Supreme Court justices.
When ProPublica disclosed these facts, Thomas issued a statement declaring that when he first came on the court in 1991, he was advised by his colleagues and others that he didn't have to disclose hospitality from personal friends. Thomas then went on to say that his understanding now has been essentially corrected and that he would in the future disclose such personal travel and entertainment paid for by others.
He did not, however, commit to amending his prior disclosure forms. And there is at least arguably some wiggle room on the hospitality question. The Judicial Conference in 2023 "clarified" the disclosure rule to make plain that hospitality from a friend, unless it is at the friend's residence or family property, must be disclosed. Thomas is expected to follow that rule in his filing for 2022 — a filing for which he got a 90-day extension, as did Alito. Many court observers, however, expect he won't amend his previous filings.
Still, there are some transactions and benefits that have been confirmed but not disclosed in the past that Thomas was required to disclose, according to ethics experts. So he likely will make some amendments to his past filings.
"The real estate deal that went down in 2014 where he sold his mother's house and some adjoining properties to Harlan Crow. [The failure to disclose that] is a very clear violation of the law," says Gabe Roth, executive director of Fix the Court, a nonpartisan organization that advocates for more court transparency. As Roth observes, the Ethics in Government Act says that "if you have any real estate transactions, you have to disclose it, and he didn't do that."
Similarly, Roth says that the private school tuition payments for Thomas' grandnephew are gifts that should have been disclosed.
To be clear, Crow's private jet, his yacht and his resorts are not owned by him personally but by his businesses. So under the "clarified" rule on hospitality from friends, Thomas can no longer escape disclosure, though his public statements have not committed him to amending his prior disclosure forms.
Thomas' omissions date back more than 25 years
Thomas has, in the past, made such amendments when other omissions have come to light. In 2011, he amended 12 years of his disclosure forms to reflect his wife's earnings between 1997 and 2009. In those years, Thomas had checked the box labeled "NONE" for his wife's employment when in fact she was employed by the House Republican leadership, Hillsdale College and the conservative Heritage Foundation, earning a total of over $1.6 million during that time, according to Common Cause and the Alliance for Justice.
Other justices have faced ethics questions related to their spouses' jobs. The ethics code requires that justices disclose their spouses' employment but not their salaries. Jane Roberts, wife of the chief justice, owns an interest in a legal recruiting business that places lawyers in major firms. By all accounts, she is very good at her job and makes big money at it, estimated in the millions of dollars.
But most legal ethics experts leaped to her defense when critics raised questions about any potential for conflicts of interest.
"She did nothing wrong," said University of Virginia professor Amanda Frost, who specializes in legal ethics. In fact, friends of the chief justice and his wife note that she left her job as a lawyer with a first-rate firm when her husband was appointed chief justice, precisely because she wanted to avoid any appearance of ethical conflicts.
Fix the Court's Roth calls the criticism of Jane Roberts "mostly a nothingburger," but he draws a distinction between Jane Roberts and Ginni Thomas, who has consulted on several issues that have reached the Supreme Court. Most recently, Ginni Thomas was involved in legal efforts to overthrow the 2020 presidential election, but Justice Thomas did not recuse himself when these issues reached the Supreme Court.
The problem for the justices is that all these stories — and more — are a corrosive drip, drip, drip, eroding public confidence in the court. And if one compares the Supreme Court today to the court 40, 50 or 75 years ago, this is a very different world. Justices back then were not, for the most part, big public figures. They didn't write books or give lots of speeches, and especially not for groups with clearly ideological viewpoints.
And perhaps most importantly, there was not a huge coterie of enormously wealthy people — often tied to political parties and causes — trying to get close to the members of the court.
The new billionaire class of "friends"
In the old days, the justices had political friends; they even played poker at the White House. Washington is, or was, a very chummy town. But the justices did rule against their political pals, and if they got too close, as Justice Abe Fortas did with President Lyndon B. Johnson, ultimately he had to resign.
Today there are billionaires, lots of them, who want to build bridges to certain members of the court. As far as is known, at least so far, they are conservative men and women interested in conservative causes. They want bragging rights about knowing the justices, and even if they don't discuss Supreme Court cases, they want proximity and, indirectly, probably influence.
By the standards of most Americans, the Supreme Court justices do very well financially. Indeed, if they really cared about money, they likely would not be federal judges. They could be making literally 10 times more than their salaries, which as of January were $274,000 for the associate justices and $286,000 for the chief justice.
The richest and the poorest of the justices
We do know a fair amount about the state of their wealth because they have to file financial disclosure forms for their investments, real estate transactions, books and teaching incomes. Seven of the nine justices filed their disclosure forms on time in June.
As to their relative wealth, Roberts is at the top. After all, after almost a decade of public service, he spent 12 years at an elite law firm earning annually what would be in today's dollars as much as $1.7 million, and now his wife is bringing in big bucks.
Following what are deemed the best practices for judges, Roberts has most of his investments in index funds of various sorts and mutual funds, where he doesn't control the investments and he won't have conflicts of interest. That said, the way these investments are publicly reported is by a code that indicates ranges — for instance, M is $150,000 to $200,000, and P1 is $1 million to $5 million. So when you add up all of Roberts' investments, the grand total is a ridiculously meaningless range: roughly $10 million to $30 million. None of the other justices is anywhere close to that, and there is no way of knowing whether Roberts' actual total is at the low or high end of that range.
As for the other justices, at the low end in terms of wealth are Justices Brett Kavanaugh and Elena Kagan.
Kavanaugh lists investments of $15,000 to $65,000. He has spent most of his adult life in public service, and even with his teaching income, capped at $30,000, he is probably the most strapped for now. He lives in a modest and relatively small house, and his wife has a part-time job. In fact, during the pandemic, with the exception of the chief justice, Kavanaugh was the only justice who worked at their Supreme Court office, because, with two teenagers at home, it was just too hard to concentrate.
Kagan owns a condo in Washington, but she rents out the parking space that comes with the apartment. The rental spot is valued at between $15,000 and $50,000, and she rents it out for between $2,500 and $5,000. And she has investments, a lot of them in individual retirement accounts and what appear to be other retirement accounts, with total investments in the range of $1.6 million to $3.5 million.
Publishers pay millions for books
In addition to teaching income and spousal income that some justices have, five of the nine are making or have made significant sums from book advances and royalties.
Justice Sonia Sotomayor has earned $3.5 million from her bestselling autobiography and her children's books. Thomas reported earning over $1 million for his autobiography, also a bestseller. Justice Amy Coney Barrett has reportedly signed a book contract with a conservative publishing imprint for an eye-popping $2 million. No word on what it is about. Justice Neil Gorsuch has earned roughly $1 million from two books, one a bestseller that is a compilation of his essays, speeches and personal reflections. And Justice Ketanji Brown Jackson has reportedly signed a contract to write her autobiography for at least a million dollars.
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