The Pitfalls of a Supreme Court Without a Code of Ethics: Balancing the Risks of Corruption and Challenges of Enforcement
“Without strong watchdog institutions, impunity becomes the very foundation upon which systems of corruption are built. And if impunity is not demolished, all efforts to bring an end to corruption are in vain.” [1]
Following the release of a ProPublica report detailing the undisclosed opulent gifts Supreme Court Justice Clarence Thomas has been receiving from Republican mega donor Harlan Crow for 20 years, debates and discussions discussing the necessity of an ethics code for US Supreme Court Justices have resurged. ProPublica revealed that Justice Thomas has been receiving annual luxury vacations from Crow for the past 20 years, with one vacation to Indonesia in 2019 costing an approximate $500,000 [2]. All these vacations have made use of Crow’s private yacht and jet. All of which Thomas has failed to disclose. Furthermore, Crow is known to have donated hundreds of thousands of dollars to support Thomas’ wife’s political activities, and he has also reportedly provided gifts to Justice Thomas himself, including expensive vacations and even a $500,000 donation to fund a museum in honour of Thomas [2]. Harlan Crow is the biggest single donor to Republican causes and as such is a very politically involved individual, albeit indirectly. CCI, a group funded by Crow, has presented cases in front of the supreme court all of which Justice Thomas has sided with Crow on. [3] The secrecy of Thomas and Crow’s financial relationship and Crow’s strong political activity has brought on questions as to whether or not the Justice has been influenced by this relationship in his job. It is critical to note that it is not illegal for Thomas to accept such lavish gifts so long as he discloses them. Under the Ethics in Government Act of 1978, judges and justices are required to disclose any gift that is valued above $415. However, until recent revisions [4] disclosure of ‘social hospitality based on personal relationships” [4] was not required and so an argument that Thomas stays in Crows yacht was a form of social hospitality. Thomas claims that he “ sought guidance from [his] colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable.” [5]
While proving Thomas’s non-disclosure of the opulent vacations he and his wife have been afforded by Harlan Crow as a violation of the Ethics in Government Act of 1978, the recent discovery of a property transaction between Thomas and Crow is decidedly a violation of this Act. In 2014, a company owned by Harlan Crow purchased the Justice’s mother’s house and two adjacent lots for a sum of more than $100,000. Justice Thomas failed to disclose this transaction. A clear violation of the Ethics in Government Act of 1978 which requires federal employees to disclose any property transaction over $1000, except for transactions related to their personal residence.[6]
The United States Supreme court is the only government body without a set code of conduct. A fact that has become increasingly worrying for many in light of the revelations about Justice Clarence Thomas lack of financial transparency and violations of disclosure laws. The lack of an ethics code may be one of the reasons why the American public is losing trust in the supreme court [7]. Without a set or binding ethical code, undue influence on justices or corruption have the potential to flourish. Room for impunity becomes available. A potential the Ethics in Government Act was meant to diminish but has failed to do so. While the Court does have some internal guidelines for its members, there is no enforcement mechanism to ensure compliance. The need for accountability and transparency measures when it comes to Supreme Court Justices has been demonstrated but the question of what this should look like remains. “Some scholars have said Congress has the constitutional authority to regulate judicial ethics.” [8] Law makers are able to leverage funding (as has been done before) in order to ensure that the Supreme Court adopts a code of ethics. [8] Even then, it is unclear who would enforce the code. What institution should oversee the highest court in the land? The answer remains unclear.
Justices are supposed to remain impartial. In trying to minimise the partiality presented by the lack of an ethics code there may be room created for the “politicised harassment of the justices” which would also affect impartiality.
The controversy surrounding Justice Thomas and Harlan Crow underscores the need for greater transparency and accountability in the United States Supreme Court. As the apex court, the Supreme Court must uphold the highest ethical standards to maintain the public’s trust in the justice system. How this need will be met is yet to be seen.
