My new column for The Hill provides a brief history of the Supreme Court’s refusal to adopt a code of conduct – spoiler: I was the first person to raise it, in 1990 – culminating in Justice Thomas’s flouting the gift disclosure requirements.
Here is the gist:
The Hill
The Supreme Court Has No Code of Conduct: It’s Starting to Show
By Steven Lubet, Opinion Contributor – 04/13/23
The U.S. Supreme Court’s refusal to adopt a written code of ethics is a 50-year-old story that has recently gotten lots of fresh attention — for good reasons attributable to the justices’ own poor stewardship of their public trust. The revelation of Clarence Thomas’s undisclosed luxury gifts from Republican mega-donor Harlan Crow is only the latest chapter in his long history of disregard for ethical norms.
The story begins in 1972 when the American Bar Association published a Model Code of Judicial Conduct, intended to provide mandatory rules for judges’ behavior both on and off the bench. The Judicial Conference of the United States became one of the first bodies to formally adopt the Code of Judicial Conduct, in early 1973.
At first, nobody seemed to notice or remark upon the Supreme Court’s abstention from the movement toward judicial accountability. I was among the first even to point out the absence of a Supreme Court Code of Conduct, in a 1990 essay, ironically in a journal published by the Federalist Society, which drew about as much attention as most law review articles.
Promises of good faith and voluntary compliance only go so far, especially when certain justices have flouted the rules that apparently apply to everyone else.
Enter Clarence Thomas.
The furor eventually shook loose a response from Thomas, who implausibly explained, “Early in my tenure at the court, I sought guidance from my colleagues… . and was advised that this sort of personal hospitality . . . was not reportable.”
Thomas’s rationalization depends heavily on the meaning of “this sort.” Six of the eight other then-justices have passed away, but neither David Souter nor Anthony Kennedy has confirmed presciently counseling Thomas that decades of lavish travel in the company of political operatives — which he had not yet indulged — would be exempt from future disclosure.
You can read the full essay at The Hill
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