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At least one member of the Supreme Court told Justice Clarence Thomas that there was no problem accepting privately paid luxury trips and other lavish gifts from "close personal friends" without disclosing them, according to a statement issued earlier this month by Justice Thomas. Whoever it was -- names were not disclosed -- gave him stunningly tone-deaf advice, given the uproar that followed when ProPublica reported that the justice had for more than 20 years accepted expensive gifts and trips from a billionaire conservative friend.
But Justice Thomas's indulgence is just the latest and most egregious example of a weakness demonstrated by virtually every member of the court for decades, those nominated by Republican and Democratic presidents alike: a willingness to accept freebies, gifts and junkets -- both costly and modest -- from people and groups who find it useful to be close to nine of the most powerful people in the United States.
While some of these gifts have been disclosed (though not always in much detail), their preponderance -- despite years of calls for restraint and self-policing by the court -- show how vital it is that the Supreme Court adhere to a clear ethics code that would limit gifts and mandate full disclosure of all outside income to the justices.
Experts said the failure to disclose the sale or the free trips was a clear violation of the Ethics in Government Act of 1978, which was intended to apply to all government employees and requires disclosure of real estate transactions and most gifts. Each branch of government was given considerable leeway in determining how it would comply with the law, and court critics have long said that the Supreme Court's compliance was the weakest of any federal government body.
Failing to disclose gifts and transactions is only one part of the problem, though. The gifts that many justices have disclosed in full or in part over the years are often just as damaging to the court's reputation as those they did not fully disclose.
The problem with these kinds of favors and gifts -- regardless of whether they are disclosed -- is that they badly damage the court's reputation as the ultimate fair arbiter of the law. The court has already sunk in public esteem because of partisanship, particularly as justices nominated by Republicans have set aside precedents, public sentiment and impartiality to advance identifiably right-wing agendas. But when the court's members accept benefits from the nation's moneyed elite, no matter their politics, it sends a signal that ordinary Americans without those resources are at a disadvantage.
In March, a few weeks before the news broke of Justice Thomas's trips, the court agreed to be bound by new accounting rules that would require the disclosure of the kind of hospitality the justice accepted from Harlan Crow, as Justice Thomas acknowledged in his statement. Had the rules been in effect earlier, he would have had to disclose the trips he took.
But the new rules are still not very strong. As Gabe Roth, executive director of Fix the Court, points out, judges are still not required to disclose the dollar amounts of the trips, and can wait up to a year to report them. Members of Congress, by contrast, must report all such gift trips within a month, and disclose their value.
A better solution is a bill introduced by Senator Whitehouse, chairman of the Senate Judiciary courts subcommittee, which would require the court to adopt a code of conduct with disclosure rules that are at least as rigorous as those imposed on members of Congress.
The bill, which now has 16 Senate co-sponsors, is a good start, but simply disclosing gifts and trips is not enough. Justices have to stop accepting expensive gifts in the first place.
* Guest editorial excerpt by The York Times.