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High court, low accountability: How Thomas scandal threatens Supreme Court

About 7 in 10 Americans trusted the U.S. Supreme Court when, in 1997, Justice Clarence Thomas disclosed receiving a private jet trip from Harlan Crow.

Mr. Crow hasn鈥檛 appeared in any of Justice Thomas鈥� disclosures since then, but the trips and gifts never stopped, according to an explosive ProPublica investigation published last week.

Chronicling decades of lavish presents and vacations bestowed on Justice Thomas and his wife by the Crow family, the has dealt a major blow to the high court鈥檚 integrity. And it comes at a time when, unlike 1997, of Americans trust the court.

That trust has been declining for years as the court has reshaped American law in significant ways, and often in a direction further to the right than a majority of Americans. Notable examples include expanding the interpretation of the Second Amendment, eroding the Voting Rights Act, and overturning Roe v. Wade. Public distrust and anger have typically focused on specific rulings, however. Now, attention is turning to the court鈥檚 overall ethics and transparency 鈥� or lack thereof.

Supreme Court justices hold lifetime appointments, but unlike members of other federal branches 鈥� and federal judges in lower courts 鈥� they mostly police themselves on ethical and financial issues. Once described by James Madison as the 鈥渓east dangerous branch鈥� of federal government, the court is now both the most powerful, some experts say, and the least transparent and accountable.

鈥淭his is not just a gift here or a gift there,鈥� says Michael Waldman, president of the Brennan Center for Justice. 鈥淎 right-wing billionaire has been subsidizing the lifestyle, secretly, of Justice Thomas for two decades.鈥�

鈥淭he Supreme Court faces a potential crisis of confidence,鈥� he adds. 鈥淭his kind of scandal, unaddressed by the court, only makes its decisions more suspect to more people.鈥�

The Abe Fortas question

Supreme Court justices are only required to make one financial disclosure each year. They aren鈥檛 subject to the for federal judges mandating that they avoid 鈥渁ll impropriety and appearances of impropriety.鈥� Recusal from a case where they might hold a conflict of interest is left entirely to their discretion.

In this context, Justice Thomas鈥� behavior 鈥渋s very disappointing,鈥� says Kermit Roosevelt, a professor at the University of Pennsylvania Carey Law School.

鈥淏ut it鈥檚 indicative of a larger problem,鈥� he adds. The Justices 鈥渁re just not subject to any enforceable ethics guidelines, and they act like it.鈥�

History is littered with stories of justices making ethically questionable trips or receiving ethically questionable gifts. Most notably, Justice Abe Fortas resigned in 1969 after a Justice Department investigation found he had accepted lucrative gifts from wealthy friends.

But compared to past controversies, the ProPublica revelations are 鈥渄efinitely worse, by several degrees,鈥� says Gabe Roth, executive director of Fix The Court, a nonprofit, nonpartisan organization that advocates for transparency and accountability in the federal judiciary.

One 2019 vacation in Indonesia that Mr. Crow subsidized for the justice and his wife, for example, would have cost over $500,000, ProPublica reported. An associate justice of the Supreme Court has an annual salary of .

There are exceptions to the justices鈥� financial disclosure requirements. Gifts of 鈥渇ood, lodging, or entertainment received as personal hospitality鈥� don鈥檛 have to be disclosed, according to the Ethics in Government Act. Justice Thomas and Mr. Crow nodded to the exceptions in statements last week.

鈥淓arly in my tenure at the court, I ... was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable,鈥� said Justice Thomas in a statement the day after ProPublica published its story.

In a statement to ProPublica, Mr. Crow said they treated Justice Thomas and his wife 鈥渘o different鈥� from their other 鈥渄ear friends,鈥� adding that they鈥檝e 鈥渘ever asked about a pending or lower court case, and Justice Thomas has never discussed one.鈥�

Innocent, if opulent, holidays with friends or not, the relationship has drawn attention to the almost complete absence of ethical scrutiny enjoyed by the nine most powerful jurists in America. Members of Congress, for example, need to disclose most trips they make within a month, according to ethics experts. They鈥檙e prohibited from accepting gifts worth over $50.

鈥淭he Supreme Court is operating with lower ethical standards than any other federal government institution,鈥� says Virginia Canter, chief ethics counsel at the Center for Responsibility and Ethics in Washington.

鈥淎t the same time, there鈥檚 no question they鈥檙e absolutely one of the most important institutions in our government,鈥� she adds.

The federal judiciary鈥檚 policymaking body updated reporting requirements for Supreme Court justices to include stays at commercial properties 鈥� such as corporate hunting lodges and ski resorts 鈥撀� and travel by private jet.

And transportation, such as private jet and yacht travel, wasn鈥檛 exempted even before the new guidelines, ethics experts say. Those are still much softer than officials in other federal branches of government. And while in the past there may have been a desire to treat justices differently from politicians in this respect, that desire is beginning to fade.

Like many in the legal profession, 鈥淚 was raised to hold the court in the highest esteem ... and thought that they held themselves to the highest standards,鈥� says Ms. Canter.

鈥淢aybe we were naive in thinking that,鈥� she adds.

Can court鈥檚 legitimacy survive the status quo?

Not everyone agrees with this assessment. Indeed, the response to the Thomas scandal has underscored the partisan cloud that has surrounded the court.

Sen. John Cornyn, a Texas Republican and member of the Senate Judiciary Committee, wrote a tweet suggesting the ProPublica story broke because 鈥渢he Left is furious it lost control of the Supreme Court.鈥�

Democrats on the Senate Judiciary Committee, meanwhile, to Chief Justice John Roberts on Monday urging him to investigate Justice Thomas鈥� conduct and 鈥渢ake all needed action to prevent further misconduct.鈥� If the court doesn鈥檛 resolve the issue of its ethical standards on its own, they added, 鈥渢he Committee will consider legislation to resolve it.鈥�

The high court has a track record of resisting calls for increased accountability and transparency.聽

The late Justice Ruth Bader Ginsburg described a 2006 Senate proposal to create a judiciary inspector general鈥檚 office as 鈥渁 really scary idea鈥� akin . In 2012, the same committee urged the justices to abide by the Judicial Conferences Code of Conduct that governs lower court judges. Chief Justice Roberts replied, 鈥渢he Court has had no reason to鈥� make that change. In 2018, the chief justice shut down a bipartisan judicial reform bill in Congress.

But the court has bowed to outside pressure in the past, as when Mr. Fortas resigned in 1969.

And Chief Justice Roberts does also have a track record of institutional integrity, notes Mr. Waldman, author of the upcoming book 鈥淭he Supermajority: How the Supreme Court Divided America.鈥�

鈥淩ight now the status quo for the Supreme Court is collapsing faith and a catastrophic loss of legitimacy,鈥� he adds. The chief justice鈥檚 response to this scandal 鈥渋s as important as any ruling he鈥檚 voted on.鈥�

Justice Thomas is unlikely to resign, and the Republican-controlled House is unlikely to impeach him.

It鈥檚 worth noting that, as perhaps the court鈥檚 most conservative member this century, it鈥檚 unlikely that the justice鈥檚 opinions were influenced to any great degree by Mr. Crow鈥檚 gifts, argues Professor Roosevelt, from the University of Pennsylvania.

But the effect of these gifts 鈥渕ay be to seal him off [from other] views,鈥� he adds. 鈥淭he ideological echo chamber you鈥檙e in affects your views.鈥�

And all that said, even if the justices鈥� activities outside the high court aren鈥檛 influencing their behavior on the court, it鈥檚 becoming increasingly hard to argue that the most powerful court in the country should also have the weakest ethical requirements.

鈥淧eople [are] waking up to the fact that there is no reason the justices have been exempt from basic accountability measures,鈥� says Fix The Court鈥檚 Mr. Roth.