S2 E5: Courting Disaster

Walter Shaub: Hi, this is Walt Shaub. Welcome to The Continuous Action.

Okay, I’ve got two words for you today. Supreme Court. The Supreme Court’s an institution facing a crisis of legitimacy that’s partly due to the legal tradition of lifetime appointments and the extreme polarization of our society.

The nomination process for Supreme Court justices is a high stakes affair, and that turbulent process has understandably embittered many Americans across the political spectrum. Nomination hearings have been dicey affairs for as long as I can remember, at least as far back as Ronald Reagan’s nomination of Robert Bork in 1987. Democrats in the Senate objected based on Bork’s complicity in Richard Nixon’s Saturday Night Massacre in the 1970s.

More recently, Senator Mitch McConnell touched off a new era of political gamesmanship. He infamously refused to hold a vote on Merrick Garland. His rationale was that a nominee shouldn’t be confirmed in Barack Obama’s last year in office, but then McConnell later raced to confirm Amy Coney Barrett during Donald Trump’s final weeks in office. The result has been a court with a six-three super majority that seems unbound by precedent and ready to reshape our legal system. The damage this court’s majority is doing to the very concept of precedent may come back to bite its supporters if a future court swings as radically in the other direction. Stakes only grow higher.

Reinforcing the appearance of politicization, private backers of Supreme Court nominations have taken on a role vaguely akin to campaign donors. Shadowy groups with deep pockets spend large sums of money on campaigns to get their preferred nominees confirmed. Making matters worse, there’s no clear tradition of justices recusing from cases affecting those who spent big to put them in office. Justices have only made things worse by completely ignoring criticism of their indifference to government ethics. While the court’s troubles go far beyond government ethics, its lack of ethical restraints is one more item on the negative side of the ledger. Justices have hawked books for personal gain, have favored partisan groups with closed doors speaking engagements, and have been criticized for failing to recuse when they appear to have conflicts of interest.

Justice Ruth Bader Ginsburg was criticized for her charged remarks about Republican presidential candidate Donald Trump, and Justice Brett Kavanaugh appeared to threaten retaliation against Democrats. Supreme Court justices have also traveled luxuriously at the expense of suspiciously generous donors, and that brings us to the recent revelations about Justice Clarence Thomas. ProPublica broke the news that he concealed his acceptance of gifts of lavish vacation packages from a billionaire political activist. Wait, no. Make that a billionaire political activist whom he only met after joining the Supreme Court. By failing to disclose these gifts, Thomas violated a federal law requiring disclosure. He also failed to disclose the sale of his interest in real estate to a company owned by the same billionaire.

He sold it for more than he’d previously claimed it’s worth, and the billionaire has continued to let Thomas’s mother live there rent free. She apparently pays insurance and property taxes, which is weird, but the new owner renovated her house for her. Nice deal if you can get it. Now, other federal officials have faced either criminal prosecution or civil monetary penalties for breaking the very disclosure law that Thomas broke. So the Department of Justice should hold Thomas accountable, but as for the gifts, well, there’s no rules on what gifts a Supreme Court justice can or can’t accept. Only common sense would counsel against accepting these gifts and common sense, my friends, is in short supply on the Supreme Court.

Listen, folks, I spent the bulk of my career in the federal executive branch. Strict ethics rules and criminal conflict of interest laws cover over 2 million federal workers there. The lowliest entry level employee in the executive branch is subject to criminal laws that just don’t even apply to the president, the vice president, the Senate majority leader, the Speaker of the House, other members of Congress, or any of the nine Supreme Court justices. That means our system of government ethics is standing on its head. Those with the most power to do harm are subject to the least ethical restrictions. How do you even justify that? It should be exactly the opposite way around. The more power you have in our government, the more you should be held accountable to the public you serve. This concept seems especially lost on Supreme Court justices.

As you’ll hear today, they seem to view themselves as being above reproach and, more importantly, above the law. That is a problem. Better ethics rules, or ethics rules at all, might not fix all the court’s problems, but a strong set of government ethics rules could take ethics concerns off the list of things dragging the Supreme Court down. For this week’s episode, I sat down with two of my colleagues from the Project On Government Oversight to talk Supreme Court ethics, or rather the lack of ethics. I’m speaking with POGO Sarah Turberville and David Janovsky. Sarah’s director of the Constitution Project at POGO, and David is a policy expert on her team.

So, David, I’d like to talk about the code of ethics for the Supreme Court and just to supply some context for our listeners, would you please read the Supreme Court’s entire code of ethics. Read the whole thing out loud, and speak really clearly.

David Janovsky: Yeah, let me make sure my voice is good and warm for this, Walt. Here we go.

[silence, followed by laughter]

Walter Shaub: Yes, that was an excellent reading, so —

David Janovsky: Thank you. I’ve been practicing.

Walter Shaub: Yeah. So what kinds of ethics concerns do you have about the Supreme Court?

Sarah Turberville: Loaded question.

David Janovsky: How much time do you have?

Sarah Turberville: That’s right.

David Janovsky: Owning stock in companies before the court. Going on hunting trips with people coming before the court. Having dinners with people coming before the court. Having huge book deals with companies coming before the court. Going on all-expenses-paid travel junkets with hugely influential organizations.

Sarah Turberville: Nice.

David Janovsky: Oh yeah. Appearing on stage with politicians who might have business before the court.

Sarah Turberville: I think back to over a decade ago, when Chief Justice John Roberts gave his state of the judiciary speech and was talking about how he had complete confidence in his colleagues to know when to disqualify themselves. I think it’s clear now that that is just not the case. Leading up to the 2016 election, we saw some pretty intemperate remarks by a justice on the court about then-candidate Donald Trump. We’ve seen another justice, during his confirmation hearing, threatened to exact revenge on political rivals. We have seen another justice refuse to permit the press to participate in what ended up being a closed-door speech that he gave to a known partisan organization, and then of course there’s the Clarence Thomas problem, which has a few different dimensions to it relative to his spouse’s conduct before and during January 6th, as well as a number of ... This being a very politically engaged family, and the degree to which the public knows how much Justice Thomas’ wife’s political activities are being brought before the court, where then her husband is deciding on cases that she has had a hand in in one way or another.

Walter Shaub: So there absolutely is no code of ethics for the Supreme Court. There is a federal law that requires judges to recuse when conflicts of interest arise. Does that law apply to Supreme Court justices?

David Janovsky: Yes. So that is Section 455 of Title 28 of the US code. It pretty clearly, by its plain text, applies to justices along with judges.

Walter Shaub: Do the justices agree that it applies to them?

David Janovsky: Well, it’s tricky. They say they follow it, but John Roberts has also raised some, what he calls “open questions” about whether or not federal laws apply to the Supreme Court.

Walter Shaub: The justices sometimes talk about something they call a “duty to sit.” What do they mean when they talk about a duty to sit, and do you agree with them?

Sarah Turberville: Yeah, the duty to sit is a special rule that the Supreme Court has come up with to essentially give it a pass to not recuse or disqualify themselves from a case where the justices don’t recuse or disqualify themselves for a case when the ordinary rules of recusal should apply, when they have maybe a somewhat clear conflict of interest, and the reason that they came up with this is because there’s just nine of them. Unlike any other court in the federal system or in most state court systems, a judge or justice who recused themselves will step aside, but then their seat can be filled by another judge or justice to hear the case. But the way that we have designed and structured our Supreme Court is that each of these nine is absolutely irreplaceable, and so if you have one who steps aside, you could end up with eight individuals on the court, which, in some cases maybe is not considered to be a great number when you have to get a majority of votes to decide a case.

What’s interesting about the duty to sit, though, is that first of all, it was something that was created out of whole cloth by the Supreme Court itself, by Justice Rehnquist. Then the court later on adopted a formal opinion describing what the duty to sit is and means for them. But at the end of the day, having eight justices on the court is not necessarily a bad thing either. This is something that the whole nation experienced when Justice Scalia suddenly passed away and the Senate was ... Mitch McConnell was unwilling to give a vote to the President’s then-nominee Merrick Garland.

So, there was an impasse of having eight people in the court for a little over a year, and it was one of the more boring years for the Supreme Court. There weren’t very many what we would call “blockbuster decisions.” There was, I would suggest, a little bit more modest opinion making and more of an obligation of the justices to try to persuade one another and perhaps create more moderate opinions in order to bring others along. I don’t think any of us would say that that’s necessarily a bad thing.

Walter Shaub: So, we have no ethics code and a recusal statute that they feel is something that they should take into consideration, but they don’t feel terribly bound by. How does the Supreme Court justify its failure to adopt any code of ethics, then, for its members?

David Janovsky: Well, they say that they consult the existing ethics standards for other judges, and so in their mind, that’s good enough. The problem is that means there’s no clear standard that we know that they are following because they have to. It’s all up to the goodness of their hearts.

Walter Shaub: Yeah. They sit in judgment of themselves. Now, I get that they and some others have argued that an ethics code would be unenforceable because there’s no one above the Supreme Court to impose a penalty or otherwise hold them accountable if they don’t comply with their own self-imposed code of ethics, but do you think there’s a value just in the declaration ... the statement of principles that a code of ethics would give? To me, it seems like it would give the public a yardstick to assess these judges against.

Sarah Turberville: I think that’s exactly right. Right now, the justices operate in this black box, and we’re all left sitting on the outside trying to understand and read the tea leaves. Of course, there’s been, unfortunately, no shortage of ethics, debacles, crises, misjudgments, whatever you want to call them, just in the last couple of years, that illustrate how important it is for there to be some specific guidance for the nine people on the Supreme Court in particular to rein in their conduct, to help them issue more consistent and better recusal decisions, and for there just to be better information disclosed to the public about what their relationships are, and what the relationships are of their spouses, that could really bring the specter of a conflict of interest to the fore.

Walter Shaub: Ginni Thomas has a lot of outside activities that could raise possible conflicts of interest. What do you think of that situation?

Sarah Turberville: Well, it’s deeply problematic in that there is no code of conduct to be able to properly expose the degree of the conflict, and that there’s also been such a great deal of reticence on the part of Congress to meaningfully address problems with third parties, because it’s not just the justices and their spouses that we need more disclosures from. We need to know more about the activities of some of these parties that have business before the court, or who are involved in the big business of federal judicial selection, to be able to see the degree to which there is connections between just helping get somebody on the court and then getting specific cases before the court, and then getting those cases decided a certain way.

What I would say about Ginni Thomas is that she has tentacles in every part of that triangle, and what’s been very difficult to disentangle is the degree of the financial relationships between the firms that she gets paid consultant fees by, that often are not listed in disclosure materials because it’s not technically employment. Those firms’ involvement with getting cases before the court, those firms’ involvement with getting specific justices on the Supreme Court in the first instance.

Walter Shaub: Shouldn’t the recusal statute require Justice Thomas to recuse from cases that could implicate his wife’s outside activities?

Sarah Turberville: Well, in theory, it does already. The statute states that a judge or justice shall disqualify themselves when their impartiality could be questioned. But of course, that’s an incredibly subjective standard. I think that Thomas’ activities bring up a number of questions because depending upon how you interpret it, and it’s of course Justice Thomas who sits in judgment of whether or not he is going to be impartial or not, so depending upon how you interpret it, you could make the interpretation that no reasonable person would question your impartiality. But I think more clearer questions, things come into sharper focus when we’re talking about the January 6 cases that have come before the court in particular.

Walter Shaub: With Ginni Thomas, it came out that she was sending text messages to Mark Meadows, President Trump’s former chief of staff, as the outgoing Trump administration was resisting surrendering power peacefully to the incoming Biden administration. Obviously, there are going to be appearance concerns about that. To me, I don’t see how he could possibly sit in on that case, but what really strikes me is that he did just simply weigh in on a case that implicated some of the activities surrounding the troubles with the transfer of power that year, and he didn’t articulate why. It was just, he decided in his mind that he didn’t need to recuse. But we have no outward evidence that he considered it or what standard he used. Do you think it would be helpful, even if there was just a rule that said in cases where there are concerns, justices should have to articulate their reasons, one way or the other, in writing?

David Janovsky: Absolutely.

Sarah Turberville: Yeah. I was going to say. I’m waiting for David and I to say in unison, yes.

David Janovsky: So it would allow there to be a body of guidance that builds up over time that both helps the public understand how these decisions are made and also helps the justices look at past instances and use those decisions to shape their own guidance.

Walter Shaub: I know the judiciary is uniquely insulated against public opinion, but I have to imagine that if there was a body of reasoning, in writing, with justices articulating the reasons they are recusing and not, over time, certain norms I think would take root and a justice who defied those norms might actually be sensitive to the considerable blowback they’d face. They might even fear that a Senate impeachment trial could be the end result for them if the House and Senate disagreed with their decision and had a body of precedent to point to. So, I wonder how much of their resistance to having a code of ethics and standards for writing down your recusals are based on fear of being held accountable by the people they’re supposed to be serving?

David Janovsky: Well, not for nothing, the judiciary as a branch is also acutely aware of the benefits of writing down the reasons they have for doing things. It’s job one for a judge, and so, we would suggest that perhaps there are benefits that flow from putting your reasoning down on paper and making it look like you’re not just making it up as you go along.

Walter Shaub: I think that’s a really more profound point than even immediately appears on the surface, because you don’t see decisions issued by courts that says, “The plaintiff wins,” and that’s it. “The defendant wins. End of case. I have no further comment.”

Sarah Turberville: I think part of the problem is that there is a real culture of exceptionalism with the Supreme Court. The rules that apply to other parts of our government don’t apply there. Where else in government do we have people who have their positions for life? Where else in government is it the same nine people, who decide cases over and over, decide not only the merits of a case, but if they’ll hear the case in the first instance? So it’s a huge amount of power wielded by a very, very small number of people for a very, very long time.

I think that culture of exceptionalism is part of what breeds its resistance to something like a code of conduct. But I think the winds are shifting, and I am hopeful that the court will see that this is not going to be a storm that it can withstand, that its very legitimacy is at stake here.

Walter Shaub: Yeah, let’s hope.

David Janovsky: We’ve been working with a group called Lawyers Defending American Democracy, who are some like-minded folks who care about good government, to really flesh out what a Supreme Court code of conduct should include. We’ve obviously heard recently that the justices think this is a really hard question to answer, so we figured we would give them a little bit of help.

We started with that code of conduct we talked about at the beginning of the interview that all other federal judges follow, but as we’ve been discussing throughout this interview, there are some areas where Supreme Court justices are in a special position. For one thing, they’re just a lot more visible than any other judge in the country, and so the things they do will resonate with the public in ways that other judges might not experience, and so we think that means they should be held to some slightly higher standards. And so we’ve taken that existing code and added some extra provisions to account for some of these issues that we’ve discussed with Supreme Court justices.

Sarah Turberville: If I could add one thing to that, one of the biggest objectives of this project of ours is to really move the conversation from, “Does the Supreme Court need a code of conduct?” to, “Well, of course it needs a code of conduct, so let’s talk about what that should include.” And there’s going to be probably a good amount of critique of what it is we propose, but that’s healthy and that’s good. That’s moving the conversation forward because we are past debating whether or not this court needs a code of conduct. Now it’s time to get down to brass tacks about what it should look like.

David Janovsky: Obviously, when we talk about ethics reform, it’s really instructive to look at the problems that have occurred in the past, but one thing we want to also emphasize here is putting these standards in place isn’t ultimately about pointing fingers or casting blame. It’s about avoiding problematic situations in the future. Rather than retreating to camps of, “Our justice is good; yours is bad,” let’s take this opportunity to think about proactive standards that we all think we should be able to expect from the nine most powerful justices in the country.

Walter Shaub: Sarah and David have provided testimony to Congress on the need for Supreme Court ethics, and you can find out more about their work developing a model Supreme Court ethics code on POGO’s website. I’ll drop a link into the show notes for this episode. The pressure for a code of ethics like that has been building for a long time. Finally, in 2019, Justice Elena Kagan testified before Congress that Chief Justice Roberts was studying the issue. Then four years passed. In February 2023, the Washington Post reported that the nine justices had tried to create a code of ethics and failed. They couldn’t come to agreement about what it should say, and that announcement has only served to ratchet up public pressure to adopt a code of ethics.

Gabe Roth of the group Fix the Court called this a, quote, “Break the glass moment for the Supreme Court,” and that was before the wild revelations about Clarence Thomas broke. I really hope Gabe is right, because it’s time for change. You would think that the justices could appreciate that a code of ethics would be an easy win for them. It wouldn’t solve all their problems, but it could afford at least some legitimacy and reduce conflicts of interest. Given Sarah’s talk of the culture of exceptionalism, it could also signal some degree of awareness that justices are accountable to something bigger than themselves: the nation.

I’m Walt Shaub. The Continuous Action is produced by Myron Kaplan, and as always, is sponsored by the Project On Government Oversight, POGO.