The US Supreme Court as an ethical model
The Supreme Court of the United States has a status close to a model of integrity in Ukraine. Meanwhile, one of the judges received expensive gifts and did not declare them. But everything is okay because this is the judicial system in the USA. Let’s talk about the SCOTUS scandal that is developing right now.
- A US businessman paid for the chief justice’s flights on a private plane, paid for his grandson’s education, took him for a ride on his yacht, and gave him a $19K Bible.
- This did not lead to any consequences because the US Supreme Court does not have a code of ethics.
Judges and politics
Before talking about the troubles that befell the conservative and religious judge Clarence Thomas, you must first imagine a political and judicial system that is completely different from Ukraine.
In an America as divided as ever, everything from guns and drugs to children’s books and TikTok becomes the subject of disputes between the left and the right. In view of such a breadth of coverage, it is not surprising that politics looks into the almost secret chambers of the administration of justice.
Here in Ukraine, we can sometimes get the impression that the US judicial system is perfect. In this ideal judicial system, judges often do not hide their political preferences. At most, in some states, the election of judges also takes place on a de facto political basis: candidates have programs, participate in debates, and enjoy the support of politicians.
Clear evidence of this is, for example, the election of a judge of the Supreme Court of the state of Wisconsin, which took place on April 4 of this year. The fight between liberal Janet Protasiewicz and conservative Daniel Kelly attracted the attention of the entire country since the candidates had, in fact, completely opposite positions on the issue of abortion. Given the fact that the prospect of resolving disputes about the permission or prohibition of abortion in the state depended on the preferences of the new judge, dozens of non-governmental organizations and associations of the appropriate level campaigned for Protasiewicz. Her victory enabled the formation of an ideologically liberal majority in the court and inspired activists to take further steps in the fight for the courts.
But, as you know, politics is not only the support of “us”, but also the sometimes rather harsh pressure of “them”. Just as candidates for the position of president, senator, or representative almost dissect their opponents under a microscope, clinging to the slightest manifestation of dishonesty, so judges from the opposite camps try to accuse their opponents of corruption, involvement, and, most importantly — and most ironically — politicization. Throwing politicization at Americans is somewhat the same as throwing winter hibernation at bears and warmth at the sun, but no one is going to stop before that!
Roosevelt and the first clash of the Supreme Court
The greatest public attention in this regard is, of course, focused on the highest court of the state — the Supreme Court. The appointment of its members by the president and the active political activity of most of the candidates to occupy the seat led to the fact that certain members of the Court often became inconvenient for ambitious heads of state who sought large-scale reforms.
The first such major challenge was President Franklin Roosevelt’s New Deal, a large-scale reform package that increased state intervention in the economy to overcome the effects of the Great Depression. Attitudes toward the New Deal clashed the Court into two factions: the “Four Horsemen” (James McReynolds, Pierce Butler, George Sutherland, and Willis Van Devanter) mostly opposed the president’s positions and supported business, and the “Three Musketeers” (Harlan Stone, Benjamin Cardozo, and Louis Brandeis) generally supported Roosevelt. Two more judges, including the head of the court, did not have a clear political position.
The lack of loyal “swords” (or, more precisely, “gavels”) led to the fact that the president’s plans were often declared unconstitutional; on “Black Monday” May 27, 1935, the administration lost three cases altogether. In the end, Roosevelt wanted to appoint “his people” by hand, but at the last moment, refrained from this because the Court did recognize the existence of the minimum wage as constitutional.
Justice Thomas v. Liberals
In the current composition of the Supreme Court, five judges are conservative, and four are liberal. All the conservative judges were appointed by Republican presidents, and all the liberal judges were appointed by Democratic presidents. The last appointment, Judge Ketanji Brown Jackson, was made by Joseph Biden.
One of the favorite targets of criticism from liberals on the Supreme Court was Clarence Thomas.
The “patriarch” of the body, who has been in office for about 32 years, is considered the most conservatively oriented judge. Thomas’s politically right-wing views are determined by his peculiar legal ideology: he is a supporter of the originalism theory (that is, from the point of view of contemporary legal understanding) of interpretation of the Constitution, federalism, and broad powers of the executive power. In decisions (or separate opinions), he most often sided with the police, gun owners, and religious organizations and generally defended so-called “traditional values”.
Thomas’ views raised the most alarm among liberals last year when, in “Dobbs v. Jackson Women’s Health Organization”, the judge argued that the Supreme Court should review decisions in “Griswold v. Connecticut” (1965), “Lawrence v. Texas” (2003) and “Obergefell v. Hodges” (2015). Overturning those decisions would allow states to restrict access to contraception, criminalize same-sex relationships, and ban same-sex marriage.
The decision in the Dobbs case caused a bombshell effect around the world because it determined that the US Constitution does not guarantee the right to abortion and that the states can make individual decisions regarding (dis)authorization of abortions — as well as determining the deadlines for this. In a number of states, laws prohibiting the termination of pregnancy without serious grounds and at late periods have automatically entered into force.
Until now, the liberal camp did not have a particularly wide arsenal of tools to “beat” Thomas. Some radicals suggested that President Biden explore the possibility of appointing additional members of the Court, while more moderate Democrats preferred to focus on giving women the opportunity to terminate pregnancies outside their home state.
However, for now, it seems that carelessness, and maybe even a little greed, has given Clarence Thomas a wonderful gift for his critics.
Justice Thomas opposed the declaration
The judge’s history with the opacity of his tax returns dates back to 2011. Then it turned out that he did not declare “forgot” almost $700,000, which his wife Virginia received from the right-wing populist Heritage Foundation. Thomas explained this fact by the fact that the couple apparently “didn’t understand how to fill out the declaration.” If this fact does not anger you, here is another fact for you: this fund opposes military aid to Ukraine.
In April of this year, ProPublica reported that the judge “virtually every year” took flights on his private plane and cruises around the world on his superyacht at the expense of Texas tycoon and one of the largest donors to the Republican Party Harlan Crowe. In addition, Thomas allegedly vacationed at Crowe’s private resort in the Adirondacks and at the Bohemian Grove private club, in which the tycoon owns a stake.
At the same time, ProPublica learned that in 2014, one of Crowe’s companies bought a house and two vacant lots on a residential street in Savannah, Georgia, from Thomas, his mother, and the family of his deceased brother. Justice Thomas did not report the sale on the 2014 return, and after the transaction, Crowe also paid for major repairs to the house where Thomas’ mother lives.
In May 2023, ProPublica reported that Crowe paid for Clarence Thomas’ great-nephew (whom he was raising as a son), Mark Martin, to attend Hidden Lake Academy, a private school. Bank statements show the monthly tuition was $6,200. In total, Crowe allegedly spent $100,000 for a year of the child’s education at Hidden Lake Academy and another school.
In addition, according to investigators, Crowe gave Thomas a rare Bible that once belonged to the famous public figure Frederick Douglass, worth $19 thousand, portraits of the judge and his wife, and also made a large donation to the Yale University Law School, where Thomas studied.
Obviously, there immediately started to be heard calls for disciplinary action against the judge. However, as always, the “alternativeness” of the US judicial and political systems can save Judge Thomas.
No ethics of conduct — no problems
Of all the US courts, the Supreme Court is the only US court that does not have its own code of judicial conduct. There are certain general legal requirements regarding the obligation to disclose income and the legality of its origin, but they are formulated quite generally and do not provide for any disciplinary consequences.
In 1972, the American Bar Association published the Model Code of Judicial Conduct, which was intended to establish mandatory rules for the conduct of judges both on and off the job. The Judicial Conference of the United States formally adopted the Code of Judicial Conduct in early 1973.
Because the Conference’s jurisdiction is limited to lower federal courts, the Supreme Court had to adopt the code itself, which never happened.
Only in 2011, then Chief Justice John Roberts devoted an annual report on the federal judiciary to the issue of judicial ethics. However, there were few specifics: Roberts allowed the judges to “consult” the 1973 Code of Conduct but added that the court “has had no reason” for the court to adopt its own code “as a definitive source of ethical guidance,” noting that “every Justice seeks to follow high ethical standards.”
On April 26, 2023, Senators Angus King (politically independent) and Lisa Murkowski (Republican) introduced a bill to develop a code of ethics for the Supreme Court. If passed, the new law would require the Court to adopt such a code within one year, promulgate it and appoint a person responsible for compliance with its provisions.
A healthy democracy requires trust: trust in systems, trust in institutions, and trust in leaders. Americans deserve to have confidence that every part of their government — especially the highest court in the land — is acting in an ethical manner.
Senator King
The American public’s confidence in the Supreme Court is at an all-time-low. Americans have made clear their concerns with the transparency — or lack thereof — coming from the Supreme Court and its justices.
Senator Murkowski
In response to the initiative, Thomas and the rest of the justices sent a report to the Senate Committee on the Judiciary detailing the court’s ethics and practices. Chairman John Roberts commented that they all followed the rules, despite the lack of independent enforcement.
In a statement, the justices said they sought to clarify how they resolve ethical issues, saying they look to “judicial opinions, treatises, scholarly articles, disciplinary decisions, and the historical practice of the court and the federal judiciary” or “advice from colleagues”.
However, the case with Judge Thomas shows that probably “advice” can come not only from colleagues — and it will not have any effect on the position of the judge.
✍️ Bohdan Myronenko
