July 24, 2024

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Here Are All The Supreme Court’s Ethics Controversies, After Alito Secret Recording Comments

Topline

Supreme Court Justice Samuel Alito drew criticism Monday as a secret recording revealed him saying he agreed the U.S. should return “to a place of godliness”—weeks after he already came under fire for flying flags associated with Christian nationalism and the “Stop the Steal” movement—the latest in a string of recent ethics issues the court has faced that have ramped up criticism of the court and sparked cries for a binding code of ethics from lawmakers and legal experts.

Key Facts

Alito’s Secret Recordings: Documentary filmmaker Lauren Windsor, posing as a conservative, recorded an exchange with Alito in which the justice says that Americans on the right and left “living together peacefully” is “difficult … because there are differences on fundamental things that really can’t be compromised”—later also agreeing with Windsor when she said she wanted to return the U.S. “to a place of godliness.” In a second recording, the justice blasted media outlets that have criticized justices’ ethics issues, claiming they’re just doing so because “they don’t like our decisions” and are very well-funded by ideological groups that have spearheaded these attacks.”

Alito’s Flag Flying: Alito flew an inverted flag after the 2020 election outside his house, according to the Times, which published an image of the flag flying on Jan. 17, 2021—when the court was considering a 2020 election-related case—with the Times reporting the flag “alarmed” neighbors and some of them reported it to the Supreme Court. The Times then reported Alito had also flown a second flag outside his beach house in 2023, known as the “Return to Heaven” flag, which originated during the American Revolution but has more recently been flown by Christian nationalists and Trump supporters on Jan. 6.

Thomas and Harlan Crow: Lawmakers renewed their calls for ethics reform after ProPublica revealed Justice Clarence Thomas accepted gifts and luxury travel from GOP megadonor Harlan Crow for years without disclosing it as federal law requires, and Crow reportedly purchased Georgia real estate from Thomas in 2014—including the home where the justice’s mother still lives—and paid for Thomas’ grand-nephew’s private school tuition.

Thomas’ Wife: Thomas has also drawn significant controversy over his wife Ginni Thomas’ right-wing activism, particularly as she supported efforts to overturn the 2020 election as Thomas was hearing cases on it, and the justice has been criticized for failing to recuse himself in a case concerning documents being turned over to the House January 6 Committee.

Thomas’ RV Loan: Thomas never repaid a “substantial portion” of a $267,230 loan from wealthy friend Anthony Welters that he used to purchase a luxury RV, a Senate Finance Committee investigation found, which raised questions about whether the loan was properly reported on his taxes, as the committee noted there would be a “significant amount of taxable income” if Thomas never paid the principal on the loan, and that income wasn’t reported on his financial disclosure.

Thomas and the Koch Network Summits: Thomas attended at least two donor summits for the Koch network—the right-wing political organization founded by billionaire brothers Charles and David Koch—and participated in a dinner with high-level donors, without disclosing his appearance at the summits or a private jet trip he took to and from the event in 2018, ProPublica reported in September.

Thomas and the Horatio Alger Society: The New York Times reported in July that Thomas has for years received “benefits … from a broader cohort of wealthy and powerful friends”—some of whom had business before the court—through his membership in the Horatio Alger Society, including more luxury travel and a Super Bowl ring.

Alito’s Travel: ProPublica reported Alito took a luxury fishing trip with billionaire Paul Singer, whose hedge fund has repeatedly had business before the court, without disclosing it—which Alito defended in a Wall Street Journal op-ed that came out before the ProPublica report, claiming he didn’t know about Singer’s connection to the cases or feel he had to disclose the trip, and he flew on Singer’s private jet in a seat that “would have otherwise been vacant.”

Alito and Burwell v. Hobby Lobby: Alito also drew attention after the New York Times reported in November a conservative activist knew the ruling in 2014’s Burwell v. Hobby Lobby after donors of his had dinner with the justice, which sparked a hearing before the House Judiciary Committee in December.

Sotomayor’s Books: An Associated Press report found Justice Sonia Sotomayor’s staff have “prodded” public institutions where the justice was speaking to buy copies of her books, giving the appearance of an ethical conflict as the liberal-leaning justice appeared to “forcefully [leverage] publicly sponsored travel to boost book sales.”

Gorsuch’s Real Estate: Politico reported Justice Neil Gorsuch sold real estate to the head of a law firm with business before the court, in a 2017 transaction that took place days after Gorsuch was sworn in as a justice.

Roberts’ Wife: Chief Justice John Roberts has come under scrutiny in light of reports his wife earned more than $10 million in commissions as part of her work as a recruiter matching attorneys with law firms, some of which have had cases before the Supreme Court.

Public Institutions: The AP’s reporting on Sotomayor was part of a broader investigation that found Supreme Court justices’ appearances at public colleges and universities routinely are used by schools to generate donations and often result in them mingling with donors who may have business before the court, as well as partisan politicians.

Justices Socializing With The Right: Conservative-leaning justices including Gorsuch and Justice Brett Kavanaugh have raised eyebrows for attending events and socializing with right-wing politicians and figures, with Gorsuch appearing last year at a closed-press event for the Federalist Society alongside GOP politicians and Kavanaugh attending a holiday party hosted by the head of the Conservative Political Action Coalition (CPAC).

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Crucial Quote

“If Justice Alito is making comments like this to a random person at a public dinner, what is he saying to his close confidants? What is he doing on the bench? How can he possibly deliver impartial justice when he so casually expresses these views?” former federal prosecutor Joyce Vance wrote Monday about Alito’s comments, adding the ethics concerns at the high court have “reached a full boil.” If public trust in the Supreme Court “is irrevocably shaken, and it will be if Justice Alito is permitted to continue on this path, we end up in a very dark place,” Vance wrote.

Contra

Windsor also posed questions to Roberts during the Supreme Court gala last week, but the chief justice declined to agree with her as Alito had. When Windsor suggested the court should put the country on a more “moral path,” Roberts responded, “That’s for people we elect. That’s not for lawyers.” He also disagreed with her characterizing the U.S. as a “Christian nation” and saying the Supreme Court “should be guiding us in that path,” telling Windsor, “I know a lot of Jewish and Muslim friends who would say maybe not, and it’s not our job to do that.”

What To Watch For

The Supreme Court announced an ethics code in November that lays out a series of guidelines that justices should follow, saying they “should maintain and observe high standards of conduct in order to preserve the integrity and independence of the federal judiciary,” including by avoiding conflicts of interest and recusing themselves from cases if necessary. Legal experts and judicial ethics advocates have criticized the code of ethics for not going far enough—namely by not having a way to enforce the code and impose consequences if justices don’t follow it—meaning it hasn’t stopped the calls for ethics reform on the court. In a statement after the code was released, Senate Judiciary Committee chair Sen. Dick Durbin (D-Ill.), who’s been leading the committee’s investigation into the court’s ethics, said lawmakers would “carefully review” the ethics code “to evaluate whether it complies with our goal that the highest court in the land not languish with the lowest standard of ethics in our federal government.” The ethics code “begins a dialogue which can end with restoring the integrity of the Court,” Durbin said, but did not rule out that lawmakers could still take steps to try and impose a stricter ethics code or enforcement mechanism.

Chief Critic

Alito has not yet commented on the recordings, though the Supreme Court Historical Society told the Times it “condemn[s]

the surreptitious recording of justices at [its] event.” Alito said in a statement to the Times about the upside-down flag flying that he “had no involvement whatsoever in the flying of the flag,” instead saying it was all his wife’s idea. He has refused to recuse himself from cases involving Jan. 6 over the flags, saying in a letter to Congress he wasn’t aware of the flags’ connotations and had no role in flying them, and that he’s “confident that a reasonable person who is not motivated by political or ideological considerations … would conclude that the events recounted above do not meet the applicable standard for recusal.” The Supreme Court’s justices had previously defended their lack of a binding ethics code by maintaining they voluntarily follow the one for lower federal judges, saying when they announced the code there had been a “misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules.” They have also denied any ethical improprieties. Thomas and Crow have defended their relationship and the gifts Crow has given Thomas in light of the ProPublica reports, and Crow has said he’s never discussed any cases with the justice. Thomas also updated some of his financial disclosures in 2022 and 2023 to include his real estate transaction with Crow and luxury vacations, claiming he was unaware he was previously supposed to include it. The court told the AP in response to its reporting that justices “exercise caution in attending events that might be described as political in nature,” and said Sotomayor’s book sales were in line with ethics guidelines and “at no time have attendees been required to buy a book in order to attend an event.” A spokesperson for the Koch network said in a statement the idea Thomas’ appearances at summits “could somehow be undue influence just doesn’t hold water,” and Thomas’ attorney Elliot S. Burke disputed the Senate Finance Committee’s investigation on the RV loan to the New York Times, arguing “the loan was never forgiven.” Ginni Thomas has also hit back against accusations that her activism has an impact on her husband’s work, and testified to the House January 6 Committee that she “did not speak with [Clarence Thomas] at all about the details of my post-election activities, which were minimal.”

Key Background

The Supreme Court’s lack of an ethics code has become a growing source of controversy in recent years, and Justice Elena Kagan testified to Congress in 2019 that the issue was “something that’s being thought very seriously about” at the court. The Washington Post reported in February the court had been actively discussing imposing a code of ethics for at least four years, but still wasn’t able to impose one or decided if they will, and justices including Kagan, Justice Brett Kavanaugh and Justice Amy Coney Barrett had publicly said the court was working on the issue. The 6-3 conservative leaning court has seen its public approval rating plummet in recent years amid ethics controversies and as the public has viewed the court as becoming too political, adding to the scrutiny of the court and ramping up cries for justices to avoid conflicts of interest. Legal scholars and the American Bar Association had called for the court to impose a code of ethics, and Thomas’ controversies involving Crow and his wife’s political activism have also sparked calls for him to be impeached or resign.

Further Reading

Supreme Court Chief Justice Roberts Refuses To Testify To Congress — Here’s How Lawmakers Are Still Trying To Force An Ethics Code (Forbes)

Clarence Thomas: Here Are All The Ethics Scandals Involving The Supreme Court Justice (Forbes)

Supreme Court Justices Reportedly Can’t Figure Out How To Adopt Ethics Code Amid Controversies (Forbes)

Chief Justice John Roberts’ Wife Made Over $10 Million As Legal Consultant, Report Says (Forbes)

Gorsuch Reportedly Sold Property To Law Firm Executive After Joining Supreme Court (Forbes)

Brett Kavanaugh Attends Conservative Holiday Party: Latest Supreme Justice Caught Cozying Up With Partisans (Forbes)

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