Supreme Chutzpah

On May 4, 1969, Supreme Court justice Abe Fortas resigned following revelations that he had accepted $20,000 in payment from a foundation controlled by Louis E. Wolfson, a friend and former client then under federal investigation for violating securities laws. Though Fortas had previously returned the money to avoid the appearance of impropriety, he ultimately decided to step down amid intense political pressure and increasing public concern. “It seems clear to me that it is not my duty to remain on the court,” Fortas wrote in his resignation letter, “but rather to resign in the hope that this will enable the court to proceed with its vital work free from extraneous stress.”

Since its last term, the Supreme Court has proceeded with its vital work under the extraneous stress of what Senate Judiciary Committee chairman Dick Durbin described as “a steady stream” of ethics scandals. According to a series of damning ProPublica reports, Justice Clarence Thomas has repeatedly been treated to luxury vacations by Harlan Crow, a Texas billionaire and conservative donor. Crow also paid the private-school tuition for Thomas’s grandnephew and in 2011 donated half a million dollars to a Tea Party group founded by Thomas’s wife, Ginni, who urged Arizona legislators to overturn the results of the 2020 election. Justice Thomas refused to recuse himself from cases involving the election and failed to report any of the gifts from Crow. Thomas also neglected to disclose a six-figure real-estate transaction involving his family and Crow in 2014—a clear violation of the Ethics in Government Act of 1978, which requires federal officials to disclose real-estate transactions totaling more than $1,000. ProPublica also reported that Justice Samuel A. Alito Jr. took a luxury vacation to Alaska as the guest of a hedge-fund billionaire with frequent business before the court. Alito did not report the trip to the public.

Unlike Justice Fortas, the last justice to resign under threat of impeachment, neither Thomas nor Alito will face any real consequences for flouting ethical norms or, in Thomas’s case, for a brazen disregard for federal disclosure laws. The Supreme Court remains the only court in the country without a written code of conduct.

These recent scandals have renewed calls for that to change. In July, the Senate Judiciary Committee advanced an act requiring justices to adopt such a code, but it has yet to be voted on. More than 90 percent of Americans now say they want the court to adopt a formal code of ethics. So do some of the justices themselves. On the same day news broke that Thomas secretly attended two Koch Network events, Justice Elena Kagan publicly endorsed a code of ethics. In early October, Justice Amy Coney Barrett did the same.

Chief Justice John Roberts has said he wants his court “to adhere to the highest standards of conduct,” but so far he has done little to make sure he or his colleagues do so. It’s no wonder, then, that trust in the court continues to erode. If Roberts insists on letting his colleagues act with impunity in the name of judicial independence, the extraneous stress currently burdening his court may become a full-blown crisis of legitimacy.