This story originally appeared in The New York Times December 3, 2024
https://www.nytimes.com/2024/12/03/us/supreme-court-ethics-rules.html?referringSource=articleShare&smid=nytcore-ios-share&utm_source=pocket_shared

Inside the Supreme Court Ethics Debate: Who Judges the Justices?

In private meetings and memos, the justices made new rules for themselves — then split on whether they could, or should, be enforced.

By Jodi Kantor and Abbie VanSickle

Dec. 3, 2024 Updated 10:19 a.m. ET

As the summer of 2023 ended, the justices of the U.S. Supreme Court began trading even-more-confidential-than-usual memos, avoiding their standard email list and instead passing paper documents in envelopes to each chambers. Faced with ethics controversies and a plunge in public trust, they were debating rules for their own conduct, according to people familiar with the process.

Weeks later, as a united front, they announced the results: the court’s first-ever ethics code. “It’s remarkable that we were able to agree unanimously,” Justice Neil M. Gorsuch said in a television interview this year.

But a New York Times examination found that behind the scenes, the court had divided over whether the justices’ new rules could — or should — ever be enforced.

Justice Gorsuch was especially vocal in opposing any enforcement mechanism beyond voluntary compliance, arguing that additional measures could undermine the court. The justices’ strength was their independence, he said, and he vowed to have no part in diminishing it.

In the private exchanges, Justice Clarence Thomas, whose decision not to disclose decades of gifts and luxury vacations from wealthy benefactors had sparked the ethics controversy, and Justice Samuel A. Alito Jr. wrote off the court’s critics as politically motivated and unappeasable.

The three liberal justices insisted that the rules needed to be more than lofty promises. But their argument never had a chance.

To piece together the previously undisclosed debate, The Times interviewed people from inside and outside the court, including liberals and conservatives, who spoke on the condition of anonymity to discuss the proceedings and the justices’ thinking. This article also draws upon public statements by the justices, who declined to comment.

While the court was praised for setting ethics rules, the lack of an enforcement provision has been criticized by ethics experts and figures on the left. One year later, the justices’ internal debate has spilled into a wider, more fractious one.

President Biden and Democratic lawmakers have called for a code with teeth. Justices Elena Kagan and Ketanji Brown Jackson have publicly pledged support for an enforcement mechanism. Outside legal experts have circulated proposals that would enlist the guidance of other federal judges. The conservative pushback has been strong and sometimes furious.

Now the election of former President Donald J. Trump, and a new era of unified Republican government, are raising the stakes for a branch supposed to serve as an independent guardrail. The court, which has a conservative supermajority, is already perceived as partisan by many Americans. And the justices largely appear to be split along the same lines on how far to go to ensure that its rules are followed.

Outside the court, critics say they are trying to bolster trust in the institution by holding the justices to similar standards as lower-court judges. Because no outsiders are involved in enforcing the new code, it lacks “any way to give the justices a chance to look in the mirror,” said Jeremy Fogel, a retired federal judge appointed by President Bill Clinton and a judicial ethics expert who recently proposed an enforcement plan.

Many conservatives, however, suspect liberals of trying to make ideologically driven incursions on the court. “I’m distrustful of calls for reform or change, because they’re so motivated by antipathy to the current court’s decisions,” said Thomas Griffith, a retired federal judge appointed by President George W. Bush. He and others argued that more stringent oversight could weaken the court’s integrity, because it could be used as a weapon, or give rise to constant warfare about which justices would hear each case.

Even as Judges Fogel and Griffith made opposing points, they acknowledged the danger of a debate about judicial conduct that splits along partisan lines.

“It’s not a blue/red issue,” Judge Fogel said. “If confidence in the Supreme Court tanks, then confidence in the whole system tanks.”

A Closed-Door Debate

The discussions were treated with extra secrecy because they were so sensitive, according to people from the court. Instead of the usual legal issues, the justices were contending with controversy about finances and gifts from friends, and some of the ground rules of their own institution.

For years, Chief Justice John G. Roberts Jr. had resisted efforts to hold the court to the same ethics rules that bind all other federal judges. In addition to the longstanding code, those judges can rely on a committee that dispenses advice. Any ethics complaints that arise are routed to chief circuit judges, who can convene other judges to investigate, and if necessary, take actions that range from discreet warning to censure.

All 50 states have avenues for examining complaints about members of their highest courts. On Monday, Senator Sheldon Whitehouse, a Democrat from Rhode Island, released a report detailing how state supreme court members are subject to ethics oversight.

The justices of the nation’s highest court have no such system, reflecting their singular power. They are the last word, by design. Their tenure is for life, save the unlikely threat of impeachment. While a legal office at the court dispenses ethics advice to justices upon request, the counsel is not binding, and not all the justices have consistently sought it out, according to several people familiar with the office.

In 2011, after an ethics controversy, the chief justice wrote that while he and his colleagues consulted the lower-court code of conduct, they had “no reason” to adopt it as their definitive guide. “No compilation of ethical rules can guarantee integrity,” he added.

Members of the court continued to accept free travel and gifts. In 2013, Justice Stephen G. Breyer jetted to Nantucket on the dime of a private equity mogul. When Justice Antonin Scalia died in 2016, he was staying at a lavish West Texas hunting lodge, courtesy of a wealthy businessman whose company had recently had a favorable outcome from the court. Justice Ruth Bader Ginsburg toured Israel in 2018 as the guest of a billionaire whose company had benefited a year earlier when the justices declined to take up a patent case.

In 2019, Justice Kagan mentioned that the chief justice was exploring ethics reform, but years passed with no result.

Last year, pressure on the court and the chief justice intensified. Journalists revealed that Justice Thomas had accepted far more largess from Harlan Crow, a conservative donor, than he had disclosed, including decades of travel on private jets and a superyacht, and boarding school tuition for his grandnephew. The public uproar also reflected another concern: Virginia Thomas, his wife, had been involved in Mr. Trump’s efforts to overturn the 2020 election.

‘Who Is Going to Enforce?’

As the justices worked, they stuck closely to the rules for other federal judges, and also seemed to codify their own preferences.

The new code, divided into sections like “Integrity” and “Avoiding Impropriety,” addressed questions like what compensation the justices could accept from outside organizations and when to recuse, or step away, from a case because of a conflict of interest. In some areas, the justices promised the obvious: not to make speeches for political candidates or participate in cases in which they have financial interests.

But they gave themselves no firm restrictions on gifts, travel or real estate deals. Nothing in the new rules appears aimed directly at the trips and gifts Justice Thomas accepted. The code says only that justices should uphold the dignity of the office and comply with existing gift guidelines, in separate federal rules, which make allowances for “personal hospitality.” Justice Thomas has maintained that his nondisclosure of gifts and free travel did not violate those rules.

Sarah Isgur, co-host of “Advisory Opinions,” a podcast about the court, said the justices seemed to be trying to preserve some latitude amid the constraints imposed by security threats, protests and heavy scrutiny.

“They are already so isolated,” she said. “I don’t know that people fully appreciate what the life of a Supreme Court justice is.”

They gave themselves a broad carve-out for book deals and sales, one of the few ways they can make substantial outside income. Justice Sonia Sotomayor has received about $3.7 million for her memoir and her children’s books; Justice Jackson was paid about $3 million for her autobiography. Justice Amy Coney Barrett’s advance for her forthcoming book was about $2 million.

Months earlier, Justice Sotomayor had come under criticism for using court staff for book-related events; now the justices gave themselves explicit permission to rely on chambers staff and resources for activities permitted by the code.

On the key question of when to step away from a case because of a conflict of interest, the justices wrote a policy — far looser than that for the lower-court judges — in which they each decide for themselves, rarely have to bow out and never have to share their reasoning. In the internal conversations, several of the justices emphasized their “duty to sit,” or obligation to hear cases: If a justice recuses, there is no one else to step in.

They provided no avenue for complaint or challenge. Judge Fogel, the ethics expert, said the justices put themselves in “a box you never want to be in as a judge, which is evaluating your own recusals without an independent process for checking your judgment.”

As the justices were formulating these rules, cases about the 2020 election and its aftermath were winding their way to the court. Despite the involvement of Justice Thomas’s wife, he only recused himself from one of them, involving one of his former clerks.

The most significant departure from the lower-court rules, and the sharpest philosophical divide among the justices, was over whether to enforce the rules they were formulating.

All three liberals — Justices Sotomayor, Kagan and Jackson — supported enforcement.

In an apparent attempt to make a higher level of scrutiny palatable to their colleagues, Justice Kagan proposed an initial step, involving a small group of veteran federal judges, according to people familiar with the discussions. She sketched out what she called a “safe harbor” system that would give the justices incentive to consult the judges about ethics issues. Later, if the justices were criticized — say, for accepting a gift — they could respond that they had obtained clearance beforehand.

“There are plenty of judges around this country who could do a task like that in a very fair-minded and serious way,” Justice Kagan said at a public appearance this year.

That modest proposal went nowhere.

Justice Gorsuch, Mr. Trump’s first appointee to the court, is known for his no-one-tells-me-what-to-do streak, with warnings of government overreach and a record of libertarian, sometimes-unpredictable rulings. As a teenager, he watched his mother, then the head of the Environmental Protection Agency, face a bruising congressional investigation into the mismanagement of a toxic waste program and eventually resign.

At the time the justices were debating the ethics questions, Justice Gorsuch was working on a book asserting that Americans were afflicted with too many laws. He warned colleagues that enforcement could undermine the independence of the court by putting other figures in a position to judge the justices, according to several people familiar with the discussions. Justice Alito echoed some of those concerns.

Oversight of Supreme Court justices is a genuine dilemma, said Wallace B. Jefferson, former chief justice of the Texas Supreme Court, who was elected as a Republican. He supports enforcement, but “how do you enforce things in this political environment?” he asked in an interview. “Once you say ‘enforce,’ who is going to enforce and how do you make sure that process is fair?”

The Power to Judge Themselves

In the fall of 2023, Chief Justice Roberts, seemingly determined to emerge with something to show the nation, circulated a revised version of the new code and urged his colleagues to sign it, according to people from the court. It had no means of enforcement. The liberal justices decided this was the best they could get, at least for the moment. All nine members of the court signed.

Since then, questions about the justices’ behavior have continued. The Times revealed that two provocative flags associated with the Jan. 6 riot had flown at the homes of Justice Alito and his wife. The second was displayed at his New Jersey beach house just as the justices were considering the new ethics rules. That summer, he also accepted concert tickets from a far-right German princess. He later disclosed those, but in keeping with the new rules, said nothing about his free stay at her 500-room Bavarian palace.

Last spring, Justice Jackson disclosed that she had accepted nearly $4,000 in free tickets to a Beyoncé concert and $12,500 in artwork to decorate her chambers.

A few weeks later, Justice Kagan took the enforcement debate public. “Rules usually have enforcement mechanisms attached to them, and this one — this set of rules — does not,” she said at a July gathering of federal judges.

Justice Jackson, on a book tour, has echoed that view and hinted that the matter is still open. “I haven’t seen a good reason why the ethics code that the Supreme Court adopted shouldn’t be enforceable,” she said recently in a podcast interview. “Other justices have posited certain ways in which it could be made enforceable but we have not yet determined or decided to do that.”

At the same time, groups outside the court have publicly floated their own enforcement proposals, in hopes of attracting support from the justices or keeping the conversation alive. New York City’s bar association released a 135-page report calling on Congress to impose changes. The group urged lawmakers to create a panel of federal judges tasked with screening — and referring to an inspector general — complaints involving claims of misconduct by justices related to recusal and gifts.

Judge Fogel and Noah Bookbinder, who leads a nonprofit aimed at ethics reform and government transparency, sent the justices their own proposal. It would allow litigants to file a motion to disqualify a justice for conflicts of interest and request review of ethics concerns. For the justices, the process would be confidential and nonbinding.

Some of the conservative responses have been accusatory. Leonard Leo, an activist who for years has worked to move the court to the right, charged Democrats with trying to destroy “a court they don’t agree with.” Kelly J. Shackelford, president of the First Liberty Institute and a prominent conservative, declared Justice Kagan’s efforts “somewhat treasonous.” Judge James C. Ho, a Trump appointee who is often mentioned as a contender for the Supreme Court, called the discussion “not a legitimate ethics debate” in November.

James Burnham, a former clerk to Justice Gorsuch, published an essay with warnings similar to the ones that his former boss had made in private. Ethics enforcement could “destabilize a legal system that has long protected us all,” he added in an interview.

With Mr. Trump set to reassume office in January, and Republicans to lead Congress, the political pressure on the court is likely to abate. The power to judge the justices’ behavior may remain where it has always been: in the justices’ own hands.

“Let’s see what happens,” said Judge Griffith. “My instinct is, let’s see if we can let them fix this themselves.”

Julie Tate contributed research.

Jodi Kantor is a Times investigative reporter and co-author of “She Said,” which recounts how she and Megan Twohey broke the story of sexual abuse allegations against Harvey Weinstein. Her current focus is the Supreme Court. More about Jodi Kantor

Abbie VanSickle covers the United States Supreme Court for The Times. She is a lawyer and has an extensive background in investigative reporting. More about Abbie VanSickle