Saturday, April 2, 2022

Time for Ethics Reform at Supreme Court

 The disclosures of Ginni Thomas’s active participation in and support for the attempted coup to overturn the results of the 2020 presidential election have created an ethics issue for the Supreme Court unique in the Court’s 225-year history. Ginni Thomas has been a prominent conservative activist for years even while her husband has hewed to conservative positions as a justice on the Supreme Court without ever having recused himself from politically charged cases brought by Republican and conservative groups.

Ginni Thomas’s post-election text messages were turned over to the House committee investigating the Jan. 6 assault by Trump’s former chief of staff, Mark Meadows. The New York Times' report on the messages, published on March 24 after earlier disclosures by the Washington Post and CBS News, described Ginni Thomas as having sent Meadows “a barrage of texts imploring him to take steps to overturn the vote.”

In one telling instance, Justice Thomas was the lone dissenter when the Court on Jan. 19 rejected President Trump’s plea to withhold White House records from the House committee. Even though out of office, Trump claimed executive privilege in seeking to withhold the records from the committee.

The Court rejected Trump’s application in Trump v. Thompson to stay the lower court decisions ordering Trump to turn over the records. The unsigned opinion accompanying the order did not elaborate on the reasons for rejecting Trump’s plea. Without writing an opinion, Thomas noted that he would have granted the application.

Two months earlier, Ginni Thomas had signed a letter along with fifty other conservative activists signaling her strong opposition to the work of the Jan. 6 committee. Ginni Thomas has repeatedly insisted that she does not inform her husband of her own political activities. It is not known whether Justice Thomas knew of Ginni’s opposition to the Jan. 6 committee when he considered Trump’s plea to defy the committee’s subpoena for his records pertaining to the Jan. 6 rally and subsequent assault on the Capitol.

Justice Thomas’s failure to recuse himself in the Trump case despite his wife’s publicly reported position has renewed attention to the justices’ exemption from the judicial code of ethics applicable to other federal judges. The code includes a provision requiring recusal under various circumstances, including any interest that the judge’s spouse might have in the proceeding. “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.”

Within the recent past, two Supreme Court spouses in fact changed their professional careers to reduce potential conflicts with their spouses. Martin Ginsburg, a prominent tax lawyer, gave up private practice for a full-time faculty position at Georgetown Law School in 1980 after his wife’s appointment to the D.C. Circuit. Chief Justice Roberts’ wife, Jane Sullivan Roberts, had been a partner at a prominent Washington law firm in the 1990s but moved to a legal recruiting firm after her husband was appointed to the Supreme Court in 2005.

The reform group Fix the Court (FTC) responded to the news of Ginni Thomas’s post-election pleas to the Trump White House with a ten-point agenda to increase the Court’s transparency and accountability. The group’s wish list includes a binding ethics code, formal procedures for requesting recusal, and requirements for justices to disclose their reasons for recusal or for refusing recusal when their impartiality is questioned. The current practice is for justices to provide no explanation for recusal or for declining to recuse.

Fix the Court highlights its central position on its home page: “Supreme Court justices should be bound by the same code of ethics that all other federal judges are required to follow.” The group cites its own research showing that justices over time have been guilty of such ethical lapses as “leaving assets off their annual financial disclosure reports, speaking at partisan fundraisers, and ruling on cases despite credible conflicts of interest.”

The group notes that the justices could “easily and formally adopt the code” on their own “if they so choose.” The group also quotes legal scholars as believing that Congress could “use its statutory authority to compel acceptance of the code.” FTC endorses such an effort.

Fix the Court also urges the Court to ban individual stock ownership by justices and other judges. Roberts and Alito have both recused themselves occasionally from cases involving companies or industries in which they hold investments. The group notes that three justices – Roberts, Breyer, and Alito – own individual shares, according to their financial disclosures, but all three have significantly reduced their holdings since FTC’s founding.

FTC also favors requiring the Judicial Conference to publicly post judges’ speeches and annual financial disclosure reports. The group notes that speeches are posted to some extent but the record is far from complete. The group also credits its own lobbying and pressure from media groups to the new practice since 2017 of digitizing financial disclosure reports to provide easier access to the reports.

The group also urges the Court to continue the current practice of livestreaming oral arguments, a practice the justices adopted after closing the courtroom to the general public in response to the covid19 pandemic. Relatedly, the group also urges that federal courts of appeals be required to livestream audio of their proceedings. Two federal courts of appeals, the D.C. Circuit and the Ninth Circuit in the West, already follow the practice. Based on the importance of the circuit courts’ work and the relative ease of livestreaming, the group contends that immediate audio access should be automatic.

FTC’s agenda is ambitious, but relatively non-controversial and relatively easy to put into effect. With public approval of the Supreme Court falling somewhat according to recent public opinion polls, now would be a very good time to institute some or all of these changes without further delay.

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