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Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts. I don't see how it is possible.
Justice Sonia Sotomayor is one of the justices who've expressed
concern about the legitimacy of the Supreme Court. The Court has faced a string of ethics scandals and controversies over the past year, and Justice Clarence Thomas is in the ethics spotlight again with revelations from a pro public a report that he and his wife accepted lavish trips around the world, including private yachts and jets and luxury accommodations for more than two decades, trips worth hundreds of thousands of dollars funded by Republican billionaire donor Harlan Crowe, trips
which Thomas never reported, And now an even more damaging revelation involving money flowing from Crow to Thomas for the sale of three Georgia properties in twenty fourteen for one hundred and thirty four thousand dollars, which Thomas also failed to disclose. Will Thomas's description of a loss of trust on the Court after the leak draft of the Dobbs decision apply to him now.
And look where we are where now? That trust or that belief is gone forever. And when you lose that trust, especially in the institution that I'm in, it changes the institution fundamentally. You begin to look over your shoulder. It's like kind of an infidelity that you can explain it, but you can't undo it.
My guest is David Super, a professor at Georgetown Law School and an expert in constitutional law. Let's discuss the trips first. What was your initial reaction when you heard about these opulent trips that Thomas failed to report.
I was shocked. I disagree with Justice Thomas on a number of issues, strongly agree with him on some others. But I thought that he took the Court seriously enough that he would not subject it to this sort of embarrassment.
All the justices must file annual financial disclosures. What are the rules for them about reporting gifts?
The rules are relatively unclear, and there have been many people who've asked the Court to clarify the rules or to tighten the rules. And the Court has shown very little interest in that. But the basic principle is that their disclosures are those to show potential interests or conflicts that they could have that can allow members of the public to be confident that they're not sitting on cases
where they might be improperly influenced. The standard for judges, and the standard the Court has upheld with respect to other judges, is that they should avoid not just impropriety, but the appearance of impropriety. And part of the point of the annual disclosures is to avoid the appearance of impropriety by letting everybody know what a justice is receiving.
Thomas has disclosed gifts and trips before. The Los Angeles Times report in two thousand and four that in previous years Thomas had disclosed a trip paid for by Crowe, as well as several gifts. There was a twenty fifteen gift from crow of a bronze bust of abolitionist Frederick Douglass, valued at more than six thousand dollars, and in the year he took that night a vacation to Indonesia that
might have wrecked up about half a million dollars. He did disclose five trips that were paid for by someone else, a series of teaching and speaking engagements at US colleges and law schools. Is there a reason why he might have excluded those trips paid for by Crow?
The reason that he's given is that the Crow trips were personal and the speaking engagements were professional. That really doesn't stand even the most cursory examination, because we benefit from both our personal lives and our professional lives, and we have interests that come from our personal lives. And judges recuse themselves for either personal or professional reasons. They
recuse themselves because they own stock in the company. They recuse themselves because they have family connected with the company. It's very common, though, the no that these being personal rather than professional doesn't bear much scrutiny.
If Thomas were a regular judge and not a justice, would that sort of loophole, i'll call it of the exemption for social and personal hospitality. Would that loophole still apply?
Hospitality means having someone over for dinner. When it's something in this scope, it's very hard to call that hospitality in many state court systems. If he were a regular judge, and in some even if he was a state Supreme Court justice. This would lead to complaints to a judicial tenure commission and the possible termination of the justice from that position. Were he a regular district or circuit court federal judge, it's certainly possible that one could imagine Congress
beginning impeachment proceedings because of this sort of thing. It's not going to happen because he's a Supreme Court justice.
Now, is the real estate transaction with this Republican mega donor different from the trips paid for by him?
It certainly is. The argument about the trips was that it was personal hospitality, very extravagant personal hospitality. But that was the argument. A real estate transaction isn't that. And it's well known that if you want to pass money to somebody without being noticed, that one way to do it is to enter into a very unprofitable transaction with them. And that's the decision that's been raised here.
And what's the penalty for failing to disclose this transaction.
The penalty would be impeachment and removal from office. The informal penalty would be a severe loss of credibility.
Some have called for his impeachment. I mean, why should a Supreme Court justice be exempt from the rules that other judge are subjected to.
They shouldn't. They should be subject to much higher rules because there's no appeal from a Supreme Court decision. The standards to the Court should be much much higher, commensurate with their greater power. And indeed, former Associate Justice Aide Fortis was forced off of the Supreme Court for doing arguably a lot less than Justice Thomas did. And when Justice Fortis was forced off the Court, the entire court and Washington political establishment insisted that he go. Liberals who
agreed within conservatives who did not. Everyone agreed that taking substantial money from, in that case, a friend of his, but a friend who also had interest in legal matters, was inappropriate. The standards clearly have changed, where everyone agreed that Justice fort Is needed to step down, and only some of his political opponents are saying that about Justice Thomas.
There are arguments that none of this affected Justice Thomas's votes because he's extremely conservative.
Anyway, That's true that he has always been conservative, but many, maybe most justices change their approach over time. Some like Justice Black, Justice White, become more conservative. Others like Justice Stevens, Justice Black than Justice suitor become more liberal. The fact that Justice Thomas had these very extensive financial relationships with an ideological conservative made it much less likely that he would have his views of all the way other justices did.
We'll never know whether he would have been more moderate if he hadn't had this relationship with mister Crow.
Democratic senators on the Judiciary Committee have called on the Chief Justice to investigate this. First of all, do you think he'll even do that? And second I would or what the point of it is? When the leak investigation ended in either not finding out who leaked the draft of the DABS decision or not telling us who leaked the draft, the.
Call for anyone other than the House Judiciary Committey to investigate is absurd because other than the House Judiciary Committee has any authority over this. As you say, the Chief Justice has limited capacity to investigate and even more limited interest in embarrassing the court. The Chief Justice, more than any other justice, has spoken fervently about the importance of maintaining the Court's public image, and it's hard to see
how an investigation of this kind would support that. But even if he found things that were deeply disturbing, there's nothing that the Chief Justice has the authority to do. The other eight justices have no authority to exclude one of their own from the court or to deny them
the ability to vote on cases. So the Chief Justice perhaps could investigate more gently than outsiders, but as you say, it's not clear that he would, and it's not clear that he would disclose the result, And whatever he found, he has very little authority to do anything about it.
The lawmakers also asked Roberts to take the lead in adopting a code of conduct that would, for the first time, subject the justices to the types of standards that are now applied to other federal judges. Roberts in the past has not embraced that idea. Neither have the justices. Might this move them?
I think it might because the Court is being so severely embarrassed by this and wouldn't deal with the problems with Justice Thomas, but it would give them something to say back to the concerns about how corrupt this certainly looks. There've been a number of incidents of this kind over the last number of years, but this is by far the worst, and I think this could well drive the
Justice to want to do something. My suspicion is that if they did an act to new code of conduct, it would have plenty of loopholes in it, but that there would at least be the appearance of typening things up.
Thanks so much for being on the show, Bes, Professor David super of Georgetown Law School. Coming up next, The Manhattan DA sues Congressman Jim Jordan and the Judiciary Committee you're listening to Bloomberg. Senators have also vowed to consider legislation to resolve this issue. If the Supreme Court doesn't act on its own. That doesn't seem likely because they'd need at least nine Senate Republicans and the House is
controlled by Republicans. But even if it succeeds, the Chief has suggested that Congress might not have the constitutional power to impose ethics rules on the justices. Do you think that is the case or not.
If five Supreme Court justices say it's unconstitutional, then for practical purposes it's unconstitutional. I would find that a bizarre holding. However, because Congress has imposed numerous ethics requirements on the executive branch, it cannot pass a law saying that the president must resign or loses office if they don't do X or Y, but they can and have imposed various disclosure requirements on presidents.
The Presidential Documents Act that's been in the news quite a bit lately is a limitation on how the President conducts him self designed to lead to transparency. And I would have trouble seeing how Congress would be barred from imposing similar standards on justices. Now it's a justice chose to disregard those standards, the only remedy would be impeachment and removal. But Congress clearly could put standards like that out there.
You refer to this, but the Supreme Court has had one problem after the other, one ethical issue after the other, several involving Justice Thomas. Do you think that this will lead to less public confidence in the Court than even now?
I think the combination of substantive rulings that are upsetting to a large fraction of the public and a sense that the Court's ethics are in bad shape is quite lethal. I think either one of those by itself might not be a problem, But the Court has made several radical
decisions lately. There's indications it has several more in store for us later this year, and when you combine that with a sense that the Court is receiving large sums from private parties, that justice are ruling on cases in which their family members are highly interested, that justices are crafting their opinions through the news media with leak, that is certainly going to persuade the public that these decisions are not reasoned attempts to get at the correct answer,
but rather the response of interest group, politics, and ideology. One thought I have I sort of alluded to earlier is that I would really love to hear people who are defending Justice Thomas explain how this is different than Justice Fortis. It's actually much worse than Justice Fortis. And I would like them either to say that Justice Fortis was improperly forced off the court or explain why removing Justice Fortas was appropriate and Justice Thomas should stay.
Thanks so much for being on the show. It's always a pleasure to have you. That's Professor David super of Georgetown Law School. Attorney Stephen Donziger is an environmental activist who took on Chevron and ended up disbarred and imprisoned for contempt of court. It's the conviction for contempt of Court that ended up before the Supreme Court. New York Federal Judge Lewis Kaplan charged Donziger with contempt in twenty nineteen after he refused to turn over his electronic devices
for Chevron's forensic experts to review. When the U. S. Attorney of Manhattant declined to prosecute Donziger, the judge appointed a private attorney to prosecute him, ending in a six month sentence for Donziger. The Supreme Court refused to hear Donziger's appeal, and Justice Neil Gorsich wrote a blistering dissent, joined by Justice Brett Kavanaugh. Gorsech wrote, in this country, judges have no more power to initiate a prosecution of those who come before them than prosecutors have to sit
in judgment of those they charge. Joining me is Professor Harold Krant of the Chicago Kent College of Law, hell tell us about Donziger in his case, this case.
Is an incredible story of environmental activism likely gone bad. The environmental activist Stephen Donziger represented indigenous groups who protested against Chevron the oil companies despoiling of the earth in letting effluence go wild. In Ecuador, and there was wrangling about where this lawsuit would take place, and Chevron sought to have the trial be decided in Ecuador. It got its wish, and Donziger was able to get eight billion
dollar verdict on half of his clients. Chevron then turned around and said that the eight billion dollar verdict was produced by fraud and convinced a New York court that
that in fact was the case. This then series of events followed that finding a fraud because then Chevron tried to find whether Donziger hidden some of them that it had been paid pursuing to the judgment, and in looking at his bank statements, looking at his emails, and Donziger then refused to turn over all of his private information
to the New York court. That's what starts this case, because then the question is did Donziger in effect commit a contempt on the court by refusing to abide by its turnover order to give them all the personal documents? And the court in New York asked the Justice Department to bring a case to prosecute Donziger for failure to abide by the order, and the Justice Department considered it and decided it was not a good use of its resources and so declined to prosecute Donziger for violating the
court order. Thereupon, the judge decided to appoint the prosecutor to champion the event and prosecute Donziger for violating the court's order, and that gave rise to the decision of the Second Circuit, which in a two to one vote upheld the court's decision to appoint a special private prosecutor
to determine whether Donziger had violated the court order. And the Second Circuit held that the district Court's decision to impose a six month sentence and a fine was entirely appropriate over a vigorous descent, and that led to the curpetition, which was recently rejected by the Supreme Court over the descents of both Justice Gorsuch and Justice Kavanaugh.
That was an extraordinary thing for a judge to do. That doesn't often happen.
So the theory is that a court must have the authority to vindicate its own power by punishing those who have tried to interfere with this process, and that those are called sort of contempt orders in court. So if someone screams and yells or insults the judge that the judge has the power to issue a contempt and to
prosecute it if it happened before him or her. In addition, the Supreme Court did decide case a number of years ago in which a court appointed a special prosecutor to prosecute not a contempt flowing from an in court conduct, but a contempt flowing from a violation of a court's order. This is rare. Rule forty two allows a court to
appoint a special prosecutor in an extraordinary case. And so, although this case is not on all fours with that, this case does involve how to apply rule forty two and ask whether Rule forty two is constitutional for a variety of reasons.
So Justice Neil Gorsitch wrote the Descent. He is joined by Justice Kavanaugh. He says, this prosecution raises grave constitutional questions. Quote the Constitution gives courts the power to serve as a neutral adjudicator in a criminal case, not the power to prosecute crimes. Tell us about his descent.
So, Justice course, it really raises two fundamental challenges to what happened here in New York with respect to the Donziger prosecution. One is a formal argument, and the other is a functional argument. The functional argument, I think will make the most powerful because it says a judge is an independent and neutral. Here the judge appointed a prosecutor after the Justice Department the executive branch refused to appoint
a prosecutor. So one of the protections for an individual is the fact that a politically accountable prosecutor will make a determination of whether to pursue a prosecution. And in this case that didn't happen because the independent, politically accountable the executive branch decided not to prosecutor, that it wasn't worth the resources to do so. So was the interested court that appointed the prosecutor, sort of deviating from the
usual judicial robes to become a prosecutor himself. So that was one level in terms of the functional separation of powers problem. Those were the sort of i'll call the functional separation of powers issues that Justice Courtshi's mentioned, But there's a formal one as well. Under the appointment's clause and Article two of the Constitution, the Constitution says that a inferior officer may be appointed by the courts of law, or by the President, or by a head of Department
when Congress so decides. In this case, Congress only indirectly decided upon appointment of a special prosecutor who's considered an inferior officer, because Congress, through the Rules Enabling Act, allowed the Supreme Court to decide on what rules to adopt, and this appointment provision was only housed in a rule that the Supreme Court articulated, not one that was provided
by Congress. So therefore, on its face, it appears that this is not the type of appointment that is consistent with Article two of the Constitution, and the courts in the past have held that those kinds of special prosecutors, as in the Independent Council Act, are acting like inferior officers within the meaning of the Constitution, and so this special Prosecutor, like the Independent Council, should be so characterized and therefore could only be appointed by if Congresso determined
again by the President of the Heads of the Department or the Courts of Law, so that would be the formal separation of powers. Objection that there was appointments Clause violation in this case is.
Concern about the potential that rogue judges will initiate prosecutions where the executive branch wouldn't or is his concern more that it's a violation of separation of powers.
I think they're connected. That separation of powers is intended to protect liberty, and it seemed to fall apart here because this individual, Stephen Donziger, was not given the benefit of sort of an independent decision of whether to prosecute. And I think Justice Gorsus was right to raise these concerns. And most people think that if there is an exception here, that judges do need to have the ability to punish
contempts in their presence. And again, if someone stands up and starts yelling at the judge or starts attacking somebody else in the courtroom, that the judge simply cannot continue with his or her case with that kind of obstruction. Has to have the ability to punish for contempt within the presence of the judge, But for violating a court order, that just seems like a context for any other kind of crime that should be prosecuted by the independent executive branch.
So I think that the issue here is that when a special prosecutor is appointed to look into whether or not a individual violated a court order, that is simply not a case where there should be a special prosecutor. It should be determined by the Department of Justice itself.
So what surprising is, so you had these two justices dissent, you need four in order to take a case. Doesn't this seem like an issue that the liberal justices would be on board with.
It is interesting that there were not two other justices to agree with, particularly given the fact that obviously controversial, but Stephen donzon Or, the defendant in this case, is considered a environmental liberal activist and might have garnered some
sympathy from some of the liberal justices itself. But it also has to do with judicial power, and it may well be that other justices are not as eager to whittle away judicial power as Justices Kavanaugh and Courses said they were interested in doing, because taking away the ability to appoint a special prosecutor does undermine some of the authority that judges not often but occasionally have wielded in the past.
Thanks Hal, That's Professor Harrold Krant of Chicago Kent College of Law. And that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com slash podcast slash Law, and remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg