The Supreme Court of the United States on Thursday, Oct. 6, 2022 in Washington, DC.
Kent Nishimura / Los Angeles Times via Getty Images
Supreme Court Justice Clarence Thomas is facing a wave of misconduct allegations in recent weeks.
Law professor Steve Vladeck spoke to Insider about the top court’s nonexistent enforcement mechanisms.
“The real problem here is that the court as an institution has no effective way of policing itself,” he said.
The Supreme Court of the United States is facing a wave of recent scandals that has shaken public confidence in the court and raised questions and concerns about the powerful justices’ lifetime positions.
The controversy primarily centers around Clarence Thomas, the longest-serving current justice now facing accusations of judicial misconduct following a series of ProPublica reports alleging he sold his childhood home to GOP mega-donor Harlan Crow without disclosing the sale and accepted decades of expensive — and undisclosed — vacations from Crow.
Thomas has defended himself from the spate of charges, arguing he was allowed to accept the gifts from Crow because the big-time political spender never had “business before the court.”
But a Monday Bloomberg report found that an appeals case involving the Crow family business — Trammell Crow Residential Co., part of Crow’s father’s real estate business — did in fact go to the court in 2004, and Thomas did not recuse himself.
In response to the Bloomberg piece this week, Crow told the outlet that he has never discussed court business with Thomas or attempted to influence the justice, also telling the Dallas Morning News that the recent reports were a “political hit job.”
“At the time of this case, Trammell Crow Residential operated completely independently of Crow Holdings with a separate management team and its own independent operations,” the company said in a statement to Bloomberg.
Democrats have called for Thomas’ impeachment — which legal experts have said is a nonstarter — and the Senate Judiciary Committee invited Chief Justice John Roberts to appear and testify about court ethics following the reports. Roberts declined.
Then, on Tuesday, another Supreme Court justice found himself in hot water after Politico reported that Justice Neil Gorsuch sold property to the head of a major law firm just days after being confirmed to the top court, declining to note the purchaser on his federal disclosure forms.
The Supreme Court did not immediately respond to a request for comment on the allegations.
The increasing issues have also prompted conversations around the justices’ lack of accountability, particularly given their lifetime appointments. While the Supreme Court is the only court not bound by a specific code of ethics, all federal judges, including the top justices are expected to follow ethics statutes and are required to file financial disclosure forms. But the top court notably lacks disciplinary measures or enforcement policies.
Steve Vladeck, a professor at the University of Texas School of Law and author of the forthcoming book “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic,” told Insider that the recent controversy points to an enforcement problem within the court that is much larger than individual misconduct by justices.
This interview has been edited and condensed for clarity.
What was your initial reaction to Monday’s Bloomberg report regarding the 2004 appeals case that Justice Thomas failed to recuse himself from?
The context is the problem. There are examples of cases where justices realized belatedly that they should have recused but did not. So, if this were a one-off where there was a single case where Justice Thomas should have recused, but didn’t, I think it would basically be a non-story.
But the problem is that it is part of this broader pattern of certainly concerning behavior and this broader pattern of filing inaccurate and or incomplete disclosure reports.
Is it possible that Thomas made a genuine mistake here? That he didn’t notice Crow’s connection to this case?
Yes. It’s possible this was an accident.
But two things can be true: Justice Thomas’s participation could have been accidental and it still could have been wrong. The rules are not set up only to prohibit malicious behavior.
Is there an argument to be made that Thomas stood to benefit financially from a decision in this 2004 appeals case?
Not in any direct way, not that I can tell.
Thomas’s defense regarding the undisclosed vacations and the sale of his house has essentially been that Harlan Crow never had business before the court. Does this Bloomberg report effectively discount that defense?
I don’t think it discounts the defense. I think it suggests that the defense is itself incomplete.
The reason why we have ethics rules and financial disclosure requirements is not just to ensure that the justices are recusing from the right cases. It’s also because of broader questions about the potential for undue influence. And it’s not just that there’s disclosure rules, there are also limits on what kinds of gifts and other benefits federal judges and justices can receive.
So, I think it’s not quite complete to suggest that the only issue that arises from this relationship is potential conflicts in cases before the court.
People gravitate toward that because that’s the most concrete thing you could point to, but we have these ethics rules and we have these standards not just to avoid that.
What else are we trying to avoid with these rules?
In general, I think we would be troubled by a world in which the justices were carrying out the bidding of wealthy donors.
That’s not to say that’s what’s happening here, but I think we should all at least be able to agree that that’s something to be avoided.
Associate Supreme Court Justice Clarence Thomas.
AP Photo/Patrick Semansky
Is it your opinion then that Thomas had any sort of legal duty to recuse himself from this 2004 appeals case?
Yes.
But part of what we get into here is also that it’s not that the rules are a mess; it’s that they have no enforcement mechanism. So, even when justices really have a fairly clear obligation to recuse, they are their own masters.
SCOTUS justices only have to recuse themselves when they have family members coming before the court or when they stand to benefit financially from a case, is that right? Or are there other instances where they should?
Well, no, the justices are bound by 28 USC section 455. They’re bound by the same statutes that bind lower court judges in that respect.
The problem is that for lower court judges, there are enforcement mechanisms. If a judge declines to recuse in a case that appears to trigger 455, there are ways for the aggrieved party to challenge the judge’s recusal. And the problem with the Supreme Court is there’s no similar mechanism.
Could the spate of allegations against Thomas lead to any sort of punishment or repercussions — whether that’s internal court policing or a Supreme Court code of ethics?
I don’t know, but again, the question is not what the rules should be. The question is how would those rules be enforced.
And I don’t think anyone’s holding their breath that Congress is going to somehow pass a new enforcement mechanism.
So, I think the question is whether there comes a point where the court believes it’s in its own interest as an institution to adopt its own enforcement mechanism, a mechanism that is more robust than just “each justice decides for themselves.”
Chief Justice Roberts yesterday officially declined to testify before the Senate Judiciary Committee on Supreme Court ethics. Was that to be expected?
He wasn’t subpoenaed. It was an invitation. He’s not bound to accept it. That’s his prerogative. It’s unfortunate that we live in a world where that’s his reaction, but as unfortunate behavior by the court goes, I don’t think this is high on the list.
Is there a point to which this controversy gets big enough that we might eventually see Roberts subpoenaed or testifying before Congress?
No, but again, I don’t think having the Chief Justice give compulsory testimony before Congress is necessary. It’s not a binary, it’s not either the chief justice testifies or nothing happens.
The point is that the issue should not be punishing Justice Thomas or punishing Justice Gorsuch. The issue should be creating some kind of public groundswell behind the idea that there needs to be a more rigorous way of enforcing the rules that exist.
We may all disagree about the exact content of those rules, we may disagree about which actions do and do not violate those rules. But it seems like we ought to be able to agree that if we’re going to have rules, it would be kind of pointless if there was no way of enforcing them.
Are there proposed ideas for how to go about enforcing those rules?
Sure. But most of them involve the court agreeing to care.
I think it’s a longer-term, more subtle conversation about sort of rationing up, not the pressure, but helping to persuade the court it is in its long-term interests to do more to provide a means of addressing the problem.
And again, the problem not necessarily being Thomas or Gorsuch, the problem being that we have these ethics rules that no one could enforce.
Protestors called for Justice Clarence Thomas’ impeachment in late March.
Paul Morigi/Getty Images for MoveOn
It seems this week’s Politico report detailing Justice Neil Gorsuch’s alleged misconduct supports your point that this is all indicative of a larger issue within the court, and not about misdeeds by individual justices.
And it’s not even just the conservatives. Justice Sotomayor has had to revise her disclosure reports in the past.
This is not partisan, this is institutional. And the problem is that everyone assumes it’s partisan because the people who are complaining are progressives and they’re complaining about conservatives. And what that drowns out is that the real problem here is not conservatives or progressives. The real problem here is that the court as an institution has no effective way of policing itself.
We may not all agree on when it should police itself. We may not all agree on when the conduct of individual justices is crossing the line, but that seems like a silly reason to not agree that there ought to be consequences when that happens.
Why was there never an enforcement mechanism set up for the Supreme Court?
Well, I think some of it is that historically there was less external concern about this. Historically, I think there was maybe more faith that the court was policing itself.
It’s also worth noting that in 1969, a justice resigned in the face of a purported ethics scandal. And I just think we’re in a very different time, not just because of the current composition of the court, but because of the court’s current relationship with the political branches or lack thereof, compared to most of its history.
Can Americans trust the court to be an impartial arbiter after all of these recent reports?
That’s a bit of a loaded question. There’s the old Russian proverb: “Trust but verify.”
One of the problems of today’s discourse is that we almost start from a presumption of bad faith. And it’s unfortunate that it’s possible that justices who are acting in nothing but good faith might nevertheless not be the right people to decide when they should be recusing.
It’s really hard to get folks to see that because there’s one very loud chorus of voices accusing the justice of bad faith and there’s another defending them by saying, “No, they had good faith.”
And I want to be in the middle shouting at everyone, “Even people acting in good faith shouldn’t necessarily be their own judges.”