Donald Sherman testifies on judicial ethics
Recent allegations that Justice Samuel Alito leaked information about a ruling to well-connected activists is just the latest unfortunate example of the Supreme Court’s crisis of institutional legitimacy. CREW Senior Vice President and Chief Counsel Donald Sherman submitted testimony to the House Judiciary Committee, and will testify before the Committee on December 8, urging the committee to develop a Supreme Court Code of Conduct that would shore up crucial ethics rules and prevent future scandals by addressing gift giving, speaking engagements, recusal transparency, spousal conflicts of interests and financial conflicts of interest.
Supreme Court justices have a record of failing to recuse themselves from cases where they have conflicts of interest and over a hundred federal judges reportedly broke the law when they heard cases that they held financial interests in, underscoring the urgent need for judicial ethics reform. In a particularly alarming example, Justice Clarence Thomas failed to recuse from cases tied to efforts to overturn the 2020 election, despite his wife Ginni Thomas’s deep involvement in such matters. Thomas was the only justice to vote against releasing the Trump White House’s communications related to January 6. The judiciary is built on a foundation of public trust: it does not have the power of the purse or the authority to enforce the laws that it interprets. Credibility is its currency and if that falls away, then the entire institution crumbles.
The following recommendations in Sherman’s testimony aim to shore up the court’s credibility.
The Committee should recommend rules around gift giving, given a record of wealthy people and well-funded activists purchasing access to Supreme Court justices through gifts. Activists and organizations have been pushing the boundaries of the definition of gift for decades, a practice that is particularly evident in the 258 fully funded trips to places like Hawaii and Ireland that the late Justice Antonin Scalia took from 2004 to 2014. The Code of Conduct should bar accepting expensive gifts to avoid any impression of undue influence by donors of particular political or ideological causes.
Outside speaking engagements and other events have long served as an opportunity for groups with strong ideological or political views to curry preferential treatment with justices and raise concerns around loss of impartiality, partisanship and undue influence on the Supreme Court. The Supreme Court should establish common sense guidelines for minimizing conflict and appearance issues arising from outside speaking engagements.
A Court Code of Conduct needs to ensure that recusal decisions are made in writing and on the record, even if a justice considers recusal but ultimately participates in the matter. Public confidence in the integrity of the courts is best served by recusal decisions that articulate why a justice has decided to participate or not to participate in a matter. That transparency would have ripple effects: it would help establish precedent and consistency for recusal, and it would allow the public—and litigants before the Court—to understand the scope of a justice’s conflicts.
Recent news reports around spousal conflicts of interest—like those of the Thomas’s—build a strong case for addressing recusal requirements that stem from spousal business activities and political advocacy work. CREW supports legislative efforts to enhance disclosure requirements so that conflicts of interest stemming from spousal activities can be more readily discerned. For example, these measures should require Justices to annually disclose on their public financial disclosure report their spouse’s board and consulting positions and identify any clients from whom their spouse received compensation that exceeded $1,000.
Finally, as Sherman has testified before, the Supreme Court also needs to address financial conflicts of interest. Congress should enact a blanket prohibition on all federal judges, their spouses and their dependent children owning or trading any individual stocks or other financial instruments. Additionally, Congress should also apply the federal criminal conflict of interest statute to the Supreme Court and the entire federal judiciary.
These recommendations to the Supreme Court are fully within the bounds of the Constitution and do not challenge any serious separation of powers concerns, given a body of legislation that Congress has already enacted regarding the Supreme Court. Since the Supreme Court has demonstrated it will not hold itself to the highest ethical standards, Congress must step in and restore public trust in the highest court of law in the country. Without Congressional intervention, that downward spiral of problematic ethical behavior will result in a catastrophic loss of institutional legitimacy that has the potential to undermine the rule of law in the United States.