Corruption and the Supreme Court

By Tom Lamia

This is not my first offering on the oddities I see taking hold of one of the three legs of our Constitutional form of government. Today my puzzling is over failures by two Supreme Court justices to disclose substantial gifts on their annual ethics reports and failures to recuse themselves from cases in which they appeared to have a conflict of interest.

The gifts issue first arose from news reports in Politico that Justice Clarence Thomas had received financial largesse in various forms from Harlan Crow over many years. Crow heads the Trammell Crow Company, a global real estate development firm founded in 1948 by his father, Trammell Crow. The company is said to employ 650 professionals, has developed or acquired 2,900 properties worth $75 billion, has $18.8 billion of projects in process and $13.1 billion in its pipeline. Not a small business and not one disinterested in the proceedings of the Supreme Court.

The benefits provided to Thomas by Crow were not included in Thomas’ annual ethics reports to the Court. When the Politico findings appeared, a hornet’s nest was kicked over. Thomas claimed that the benefits he received were “personal hospitality” exempt from reporting.

Politico also reported that Justice Samuel Alito received a private jet flight paid for by a conservative billionaire who later had cases before the Court. The flight was part of a high-end salmon fishing trip. Alito, in an opinion column in the Wall Street Journal, referred to the trip as “hospitality” that he was not required to report. Justices Thomas and Alito have set off alarm bells for the Court’s honor system with these failures to report substantial benefits received from persons with interests in matters presently or potentially before the Court.

Additionally, both Thomas and Alito have not recused themselves from January 6 cases. This is despite Thomas’ wife Ginni having a highly visible role in support of the cause and despite the Alitos’ flag flying. Thomas claims there is no conflict because he and his wife do not discuss their work at home. Alito sees no conflict because his political and religious beliefs have no bearing on these cases.

The Court now has an ethical conundrum. Its Ethics Code, agreed to by each of the current justices, was promulgated in November 2023. The need for a Code, is to [dispel] “the misunderstanding that Justices of this Court … regard themselves as unrestricted by any ethics rules.” The Code says all the right things about avoiding impropriety, maintaining high standards, etc. On the critical point of outside influence, the Code says that a justice “should not allow [any] relationship to influence [his or her] official conduct or judgment…or knowingly convey or permit others to convey the impression that they are in a special position to influence the Justice.” There is more, much more, but it still looks like an honor system. The assumption seems to be that a justice, having attained the office, is of unimpeachable character, able to discern and honor the spirit as well as the letter of the guidelines. Neither “hospitality” nor recusal are mentioned. There is no procedure for interpretive guidance that would protect both the justices and the public from errors of interpretation. There is no process for internal or external review and no means of enforcement. Each justice is to decide whether any reporting or recusal obligation exists.

Why not have an enforceable ethics code? Because the Supreme Court answers to no outside authority. It is independent by Constitutional fiat and is solely responsible for protecting its independence. It could impose enforceable penalties on itself and that is a path suggested recently by Justice Elena Kagan. Kagan believes that a panel of lower federal court judges could be entrusted to enforce an ethics code applicable to the Supreme Court.

An inviolable historical practice of the Court is collegiality in selecting, hearing and deciding cases. It is a good and necessary rule. All discussions among the justices take place in strict confidence; no one, not even note takers or law clerks, are in the room for these discussions. This intimate collegiality builds trust without which the Court would become just another political battleground.

Ethical transgressions present a special vulnerability for collegiality. The reporting and recusal decisions of Justices Thomas and Alito have strained the credibility of the Court’s honor system. An exemption for gifts of “hospitality” in the amounts and circumstances that went unreported does not pass the smell test. A disinterested filter is needed, as is an authoritative view of what constitutes a conflict or appearance of a conflict.

Alito reported on his 2003 ethics disclosure form, released a few weeks ago, that he and his wife attended a music festival last year in Germany at the invitation of Princess Gloria von Thurn und Taxis. Alito’s report included a $900 gift of concert tickets from the princess. When asked about her relationship with the Alitos, the princess referred to them as “friends” and to Alito as “a hero.” Princess Gloria is said to be a central figure among traditionalist Roman Catholics opposed to Pope Francis. None other than Steve Bannon is said to favor the princess’ Regensberg properties as a potential “gladiator school” for the theological training of traditionalist conservative Catholics.

The Appeal to Heaven and upside-down American flags flown at two Alito residences are yet another Alito ethical issue. Both flags have been used as banners by those who wish to overthrow the U.S. Government. Not a good look for one entrusted with protecting and defending the Constitution. The reason for Alito to recuse himself from the January 6 cases seems obvious to many, but not to Alito.

Alito has spoken out against what he apparently believes to be societal efforts to suppress the free exercise of religion. He has said that “religious liberty is under attack . . . because it is dangerous to those who want to hold complete power.”  Who are those who want complete power? The First Amendment says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . ..” Alito often uses the term “religious liberty” to describe a right of free exercisers of religion to limit the rights of others. His religious liberty may not include the right to the free exercise of no religion or of a non-Christian or anti-Christian religion in what he describes as a Christian Nation.

The practice of accepting “hospitality” as a non-reportable perk for a Supreme Court Justice has apparently evolved over time as an exception to the Court’s annual ethics reporting. Thomas said he had been advised that such “hospitality” benefits were not reportable. Alito mentioned the exemption in his op-ed reference to the salmon fishing trip. “Hospitality” seems to include luxury accommodations at hunting lodges, private air travel and all accommodations for retreats, concerts, festivals and group gatherings of all sorts, with food and lodging, tickets and passes included. How likely is it that the Code’s Outside Influence rule would not be compromised?

“Sunshine,” in the words of former Supreme Court Justice Louis Brandeis, “is the best disinfectant.” A large dose of sunshine in the form of enforceable ethics disclosure rules objectively interpreted now seems essential to disinfect the Court’s growing reputation for self-delusion.

For its own protection the Court must, like Caesar’s Wife, be above suspicion. It is heading in the wrong direction.