Should The Supreme Court Be Allowed to Police Itself?

From Bloomberg News and iHeartRadio. It's the big Take. I'm West Casova today. Can Supreme Court justices be trusted to oversee themselves?

But a series of recent reports documenting Justice's failures to disclose gifts and real estate deals has sparked questions about possible reforms, including luxury vacations for Thomas a portion of his wife's salary.

This was one heck of a trip.

This is not some fishing trip, a five hundred thousand dollars island hopping.

Which fills the same Conservative activists who paid for Thomas's vacations and bought his mother's home also paid for his grand nephew's private school tuition.

For weeks now, the US Supreme Court has been in a harsh spotlight after disclosures that raise potential ethics questions about some of its members, most notably Justice Clarence Thomas, who didn't report lavish vacations and other financial benefits he received from a Texas billionaire. And he's not alone. Justice Neil Gorsich and even Chief Justice John Roberts have also

This makes them again the only judges in the US who have unlimited discretion to decide whether they're disqualified in a particular case.

That's Stephen Lubitt. He's a law professor and an expert on legal ethics. I talk with him in just a bit about what, if anything, the Constitution has to say about who has the power to oversee the justices. First Bloomberg, Supreme Court correspondent and friend of the Big Take podcast Gregg's Store, is back to sort through what's happening. Greg.

Yeah, it's been quite the season for ethical controversies at the Supreme Court, most of which are connected to Justice Clarence Thomas.

So there's Thomas, and then there are also questions surrounding Chief Justice John Roberts and also Neil Gorsich, one of the newest members of the Court. Can you just walk through what the various questions are about each of them.

Sure, and I would say that certainly the questions about Roberts and Gorsich are a much lower tier than the questions about Thomas. The John Roberts issue has to do with his wife's work. His wife is a lawyer. She worked as a practicing attorney before he joined the Supreme Court, and then she shifted to become a legal recruiter. And so the questions about them have to do with the payments to her from firms who do work before the Supreme Court. No indication that it is violated INNY established

So there's Chief Justice Roberts situation. Neil Gorsich also has had some questions about a real estate transaction.

Right, So this is mountain property that he owned with a couple other people that was held in an LLC, and he sold that property or the LLC sold that property more specifically, and that's important just after he was confirmed to the Supreme Court. They'd been trying to sell it for a while and had a little trouble finding a buyer. It turns out the buyer is somebody who is a very successful lawyer, and Justice Gorsag on his financial disclosure reports did not indicate who the buyer was

So both of these instances really came out after there started to be very close scrutiny of the justices when these other details started coming out about Clarence Thomas, right exactly.

I think part of what happened here is that folks in the media collectively realized that there's some information in these financial disclosure reports that maybe isn't as complete as you know, or raises a lot of questions, and so folks started looking into various aspects of various justices. And yes,

And tell us about Harlan Crowe and what that relationship with Clarence Thomas was.

He is a Dallas based businessman, real estate developer. He says he met Clarence Thomas in nineteen ninety six after Justice Thomas joined the court and they became friends and for more than two decades they have gone on vacations together, including places like Harlon Crow's yachts and you know, exotic locations like Indonesia and Clarence. Thomas has not been paying for these, and he also had a number of private

And his argument was that he was not required to disclose them because Harlan Crowe didn't have business before the court.

Yeah, and also because the disclosure rules created an exception for personal hospitality, So there's not a whole lot of question if he just goes and stays for a weekend at Harlan Crowe's house, he doesn't have to disclose that. The questions had to do with, well, what if where you stayed wasn't actually owned by the individual, it was owned by a company. There's some fuzziness to the rules.

These about our Bloomberg colleague, Zoe Tillman looked through many years of Supreme Court cases and found one where one of Crowe's companies did have a case before the court.

Yeah. So in Justice Thomas's statement after the first pro public report, he said Harlan Crowe did not have business before the Supreme Court. And what Zoe found was there was a case almost two decades ago where Trammel Crow Residential, which is a company that travel Crow is the name of Harlan Crowe's father, and Harlan Crowe's company owned a portion of Trammel Crow, so an interest in the case. They actually did have a case at the Supreme Court,

And then there's a separate issue that more recently came to light about Crow and Thomas having to do it paying for tuition.

So Clarence Thomas and his wife Ginny raised where Clarence was the legal guardian for his grand nephew who had a very troubled background, and they took a man at a very young age and raised him, and Clarence Thomas has said like a son. And so the new report says that Harlan Crowe paid for a couple of years of tuition for this boy at private schools, including a

And there is yet one more financial transaction between Crow and Thomas that has been the subject of some scrutiny.

Yeah, so Clarence Thomas, he and his some family members had some property in Savannah, Georgia. Is a house where he grew up and Harlan Crowe bought that property and it includes a house where Clarence Thomas's mother still lives and Harland Crowe paid for some improvements to the property as well built a carport. Again, this is all stuff that was not reported by the Justice.

What is Harlan Crowe said about all of these various things that would come to light.

He has essentially said, I am doing things for a friend, that the Thomases are dear friends of mine. In the case of the house, I was buying that because I thought it would be to create a museum at a later point. You know, here's where Supreme Court justice grew up. He has in the case of the grand nephew, said, look, I have done this for at risk kids a lot. I have paid for tuition because that's something that I think is important. And he has said I do not

And then there is finally one more question surrounding Clarence Thomas, and that's the political work of his wife, Ginny Thomas, who is one of the strongest advocates arguing to challenge the results of the twenty twenty presidential election.

Yeah, we almost forget about this because we were so engrossed in the money spent by Harlan Crowe. But yes, Ginny Thomas, as a conservative activist, was actively encouraging folks in the Trump administration, particular Mark Meadows, the Chief of Staff, to do more to try to overturn the results of the election. Those text messages have been made public.

I would like to thank a great woman named Ginny Thomas.

Do you know Jinny Thomas.

She's a great woman, the wife of a great man, Justice Clarence Thomas, for her courage and she said that she still believes the twenty twenty election was stolen. She didn't wilt under pressure like so many others that are weak people and stupid.

Clarence Thomas has not recused himself from any case related to the January sixth riot at the Capitol, including a case about whether White House papers that would have revealed some of this information about his wife, whether those would get turned over to a congressional committee. That's the kind of the pre existing controversy before all this other stuff came out.

This all raises this question about what justices are required to disclose and what they should disclose, because even if they don't run, a follow of any ethics policy that is written in some regulation doesn't look so good.

Yeah, So the Supreme Court alone, among federal judges is not found by any code of conduct. There is a code of conduct that applies to other judges, and the Supreme Court has said we looked at that for guidance and we essentially follow it. But there is no enforcement mechanism.

They police themselves.

They essentially police themselves, exactly right.

A lot of people, particularly Democrats in Washington, are not satisfied with the idea that the justices are policing themselves, especially because of all of these things that we're talking about here, and there has been a push to try to impose some ethical standards that the Court itself would have to follow. But Chief Justice John Roberts has pushed back very forcefully against that.

Yeah, he really has. When Dick Durbin, the chair of the Senate Judiciary Commuty, tried to get John Roberts to come testify.

It is critical to our democracy that the American people have confidence that judges cannot be bought or influenced and that they are serving the public interest, not their own personal interest.

Roberts not only said no, he did it in a letter that didn't really acknowledge there was a problem here. He just said, look, chief Justices, don't come testify. You know, it's basically never happened in history. And they attached this what they called Statement of Ethical Principles and Practices, which all nine Justices sign, which basically just regurgitated things that he and others have said before this is how we do things, and didn't really advance the ball very much.

John Roberts has always been very protective of the Court's reputation, and he's pushed back against charges that the Court is political. You would think that, because the justices are the final arbiters of constitutional questions, these very weighty matters that come before it, that Roberts himself would want to make sure that there was no even appearance of something wrong. We were talking about the case of his wife, talking about Neil Gorsisch, and these are very kind of gray areas.

Well, let me try to be generous towards the Chief Justice and say, undoubtedly he's in a very tough spot. Whatever he thinks about what Clarence Thomas is doing, he really only has two choices. He can defend Clarence Thomas. He can come out and criticize him. I guess a third choice, he can do what he's doing, which is essentially nothing. But neither of those first two choices work

He's not doing anything.

So, you know, the Chief Justice, we call him the chief but he's not the boss of the other justices. He has a few special roles. He gets the bigger office, he's got a couple of ceremonial and maybe he slightly not ceremonial roles, but he doesn't have the authority to impose something on his own. Now, it's not always crystal clear what the chief can do in his own and what the Court as a whole has to do.

I took that.

Statement that they issued as essentially the best that Roberts was able to produce. He got a statement that nine of them signed saying, we take ethics very seriously. Here's what we do. He may well have wished he could get them all to agree to a code of conduct in some binding mechanism. The question for him was would he want to do that if it wasn't unanimous among the justices and if one justice said, you know, I disagree with that and I'm not going to follow it.

But Greg, would Roberts have to criticize Clarence Thomas or other colleagues. Couldn't he have just said, as the Supreme Court, we have to be beyond reproach, and so what we're going to do is say that we'll follow the same ethical guideline that other federal judges have to follow, just to make sure that there aren't any of these kinds of questions about us.

So he certainly could have said that. And the word I would focus on is the we. When he says we are going to do that, does Clarence Thomas agree to do that? And if Clarence Thomas doesn't agree to do that, what does John Roberts do? It's not all that clear. And you know, maybe if he is skillful in his relations with his colleagues, maybe he can thread that needle. But of course, at the same time he's negotiating with them over you know, big cases on firmative action,

After the break, will Congress step in to impose rules on the Supreme Court? Greg As you've said, the Court is pushing back against the idea that they should change their ethics reporting rules. Do you think that there's any chance that Congress will now step in and try and do what the Court won't do itself.

It's hard to imagine Congress will do much in this current environment. The current environment being we have a divided Congress with Republicans in control of the House, and we saw at the recent Senate hearing about these very issues, these Supreme Court ethical issues, a lot of Republican pushback on the idea that anything at all needed to be done.

So we can talk about ethics, and that's great, but we're also going to talk about today of a concentrated effort by the left to delegitimize this court and to cherry pick examples to make a point.

So never say never. We don't know what next story might come out and what might change the dynamic. But as of right now, the way this is playing out in Congress is basically a partisan fight, and with Congress divided, it's hard to say see what emerges from it.

Do you think that these questions being raised about the justices themselves, especially in this very political environment, does harm to the reputation of the court, that it lowers the faith of Americans in the Supreme Court.

It's hard to see how it doesn't. I mean, certainly you look at public opinion polls and you're seeing it. The numbers are way down, and this all, of course, happens against the backdrop of a court that has become much more conservative through Republicans pushing really hard to get their nominees confirmed and keep Democratic nominees from being confirmed, or at least keeping one Democratic nominee from being confirmed, and major decisions, especially the one overturning review Waid and

And do you think there's any political pressure that would lead Clarence Thomas to step down?

I can not see it, Wes. I mean, you know, I was talking to some colleagues about this. You know, if we think about like what made Richard Nixon resign, what made Abe Fortis, who was a justice when Richard Nixon was president, both of those happened when that person lost support among members of their own party. Richard Nixon resigned in large part because the Barry Goldwaters of the

Greg always great talking with you, Thanks for coming on the show. My pleasure. Now let's hear from someone who has closely studied these questions. Stephen Lubitt is an emeritus professor of law at Northwestern University. He's written for years

They would claim they follow the same guidelines, they just haven't formalized it into a code, which I think is sort of silly. The reason they don't have a code is just because they don't want to. You know, they're the Supreme Court, they get to decide, and they've made

But then again, they're the court. How does it work now if you're a Supreme Court justice and there is a question about either ethics involving money, or even whether a justice should recuse from a case who ultimately decides.

There is a federal statute that governs disqualification and recusal. It's basically the same provisions as in the Code of Judicial Conduct. Now, the Supreme Court has never actually conceded that they have to follow that statute, but they pretty much have or at least they've said that they pretty much have. But they have adopted a process in which each justice decides alone and unreviewably on their own disqualification, so the whole court never sees it, never gets to

But if there say is a clear conflict of interest that a justice may have with a case appearing before the court, and that justice just does not recuse him or herself, is there any recourse or is it just their decision? And after that nothing can be done.

There is no recourse, it's their decision. After that, nothing can be done. Well, you could have impeachment. I suppose sort of impeachment. Nothing can be done.

So what is the solution here if we talk about that when we come back, Steve, you mentioned earlier that Congress does have an oversight role. What can Congress do to impose certain accountability on the Court if the Court won't do it itself.

Well, I think Congress has an oversight role. Congress probably thinks they have an oversight role. It's not obvious that the Supreme Court is going to grant that or agree with that if there is ultimately legislation. But I think that Congress could either require the Court to adopt its own code, which seems to me to be the most sort of compromise solution. The Congress isn't going to dictate what the code needs to be. If the Justices think they have particular to write it one way or another,

Court when it comes to recusal from cases where justice might have a conflict of interest.

Yeah, exactly. So disqualification is the term that's used in the statutes, recusal, it means the same thing. Now that's clearly within I think the authority of Congress, because Congress, right in the Constitution, can set the jurisdiction of the Supreme Court besides what's within and not within Supreme Court jurisdiction except for a very narrow band of cases. So saying how particular motions are to be handled, I think is something Congress could do.

You said earlier that you aren't sure that the Supreme Court would accept Congress's authority, and I think we saw a bit of that when Chief Justice Robert sent a rather forceful letter to the Chairman of the Senate Judiciary Committee saying he wouldn't testify and then saying why he wouldn't appear. You've written critically about that.

Right, I thought the Chief was not being straightforward when he said that. He said that only twice had chief Justices ever testified. But you know those are precedents, and the Senate invitation was actually for the chief or a designated associate justice to testify, and Chief Justice Roberts just blew right past that Associate Justices have testified almost two hundred times in the last sixty years, more than once a year, So there's no reason that someone couldn't have been there.

So you've written about judicial ethics for years, you taught it. If you were able to say this is what we ought to do, what would it be, Well.

It would be what Senator Tillis said at the recent hearing Tom Tellus, Republican from North Carolina. He said, I hope the Supreme Court is watching this hearing, and I hope they'll take it to heart, and I hope they will adopt a code of conduct. Now, I would add to that, I hope they would figure out a way to make full court rulings on disqualification motions because that would give much greater credibility, create much greater public confidence.

Do you think that given the public attention and political pressure on the court that we're seeing now, will actually force their hand and that they will adopt some different standard.

I think if they wanted to change, they would have done it already.

Professor Steven Lubitt, Thanks so much for talking with me.

It's been a great pleasure, Wes anytime.

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