鈥淪unlight is said to be the best of disinfectants,鈥 wrote Supreme Court Justice Louis Brandeis, in a 1913 essay. The dictum has proved so apt over the years as to become a clich茅. Unfortunately, it now needs to be applied to the court itself.
Few US institutions are subject to as little formal scrutiny as the Supreme Court. In theory, members of the court are subject to the same financial disclosure rules as other high-level federal officials. Yet with no one empowered to enforce those rules but themselves, the justices have all too often seemed to be above the law. The situation increasingly feels untenable.
Take Justice Clarence Thomas鈥檚 relationship with Texas real-estate developer Harlan Crow. A major conservative donor, Crow has for decades entertained Thomas and his wife on annual vacations that have included cruises on his yacht, flights on his plane, and stays at an exclusive California retreat.
Although federal law requires disclosing gifts worth more than a few hundred dollars, Thomas has divulged hardly any of Crow鈥檚 largesse, citing advice from colleagues early in his tenure that such arrangements were a 鈥減ersonal hospitality.鈥 It鈥檚 true that the law contains a hospitality exception, but few experts think it absolves Thomas of his reporting obligations altogether. (New rules took effect March 14 that tighten such requirements.)
Complicating matters further, Crow bought Thomas鈥檚 mother鈥檚 home in Georgia as well as other adjacent family-owned property for $133,000 in 2014. Again: Federal officials, including justices, are required by law to report any real-estate transaction above $1,000. Thomas claims the matter was an oversight. Whether he acted improperly is at best ambiguous.
Yet Thomas is hardly the only justice to engage in ethically equivocal conduct in recent years. Justices across the ideological spectrum have been accused of failing to make pertinent financial disclosures, accepting dubious blandishments, rejecting well-founded calls for recusal, engaging in questionable political and financial activity, and much else that would raise the eyebrows of any reasonable observer.
That the Supreme Court is the only federal bench in the nation without an explicit written code of conduct makes such behavior almost inevitable. All other federal courts are governed by a longstanding central ethics code. Administered by the Judicial Conference of the United States, the policymaking body that oversees the judiciary, the code offers one key tenet: 鈥淎 judge should avoid impropriety and the appearance of impropriety in all activities.鈥
One can debate the particulars of Thomas鈥檚 case, but it鈥檚 hard to argue that his entanglements with Crow don鈥檛 create at least an 鈥渁ppearance鈥 of misconduct. That Crow has no cases directly before the court isn鈥檛 entirely exonerative (as Bloomberg News reported, two decades ago, the court declined to hear a case linked to Crow鈥檚 family firm); the problem arises from an individual of great wealth squiring a Supreme Court justice and his family around on a yearly basis and mostly keeping the matter secret. So it goes with the other justices, whether they explicitly violated a rule or not.
What should be done?
In a 2011 report, Chief Justice John Roberts asserted that the Supreme Court shouldn鈥檛 fall under the same set of rules as the rest of the judiciary. Because the high court was created by the Constitution, not Congress, it was due an added measure of self-governance. In his view, the ideal balance for justices mulling ethical questions would be to 鈥渃onsult鈥 the code of conduct while seeking advice from the court鈥檚 legal office and 鈥渇rom their colleagues.鈥
Such an arrangement is almost an invitation to abuse. Roberts should instead invoke his authority as chair of the Judicial Conference to establish a formal ethics code specific to the high court. In fact, there鈥檚 precedent for the court and Congress working together on issues where legislative and judicial prerogatives intersect. In the 1990s, the rules of habeas corpus were significantly revised after then-Chief Justice William Rehnquist assembled a commission of federal judges to study the issue. Congress picked up the commission鈥檚 recommendations and passed them into law.
A similar commission should be established to create rules of the road for the high court itself. It should specify how those rules will be enforced, and by whom. And it should add a bit of sunlight to an institution that has for too long resisted it.
