Today, ProPublica released an extensive analysis exposing how Supreme Court justices have skirted their limited code of ethics and intentionally worked to ensure they would never have to follow an enforceable code of conduct.
“Every revelation continues to prove that the Supreme Court’s lack of a meaningful code of conduct is by careful design by right-wing justices who don’t want to be held accountable,” said Tiffany Muller, President of End Citizens United // Let America Vote Action Fund. “The Supreme Court should be held to the highest standards, but self governance and honor systems have done nothing but allow rampant corruption to go unchecked. The only solution is for Congress to step up and hold them accountable.”
ProPublica: The Judiciary Has Policed Itself for Decades. It Doesn’t Work.
Brett Murphy and Kirsten Berg
12/13/23
Key Sections:
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For decades, judges have relied on a select group to make sure the judiciary adheres to the highest ethical standards: themselves.
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The Judicial Conference, a secretive, century-old council of federal judges led by the chief justice of the Supreme Court, oversees the ethics and financial disclosures for more than 1,700 federal judges, including the nine justices of the high court. Those financial disclosures, submitted yearly as a list of assets and gifts, are often the only window into whether judges with lifetime appointments have conflicts of interest as they rule on the country’s most consequential legal cases.
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The judiciary’s leaders argue that the conference has been an effective watchdog over America’s third branch of government. The conference’s authority plays an important role in judicial controversies and has been at the center of some defenses of the court following ProPublica’s reporting on possible ethical breaches.
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In reality, the Judicial Conference has instead often protected, not policed, the judiciary, according to interviews and previously undisclosed internal documents. For decades, conference officials have repeatedly worked to preserve judges’ most coveted perks while thwarting congressional oversight and targeting “disloyal” figures in the judiciary who argued for reforms.
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And when the judiciary clarified its rules on federal judges’ disclosures earlier this year, the final version was watered down, according to internal documents obtained by ProPublica. The goal behind some of the proposed edits, a staff attorney explained in an email to a subordinate, was to avoid “drawing bright lines.”
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Across the federal government, financial disclosures and potential conflicts of interest are self-reported. But experts say the judiciary has the least oversight of all three branches.
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The enforcement capability of the judiciary’s Financial Disclosure Committee was tested in 2011, when Justice Clarence Thomas was accused of failing to disclose the source of his wife’s income, as well as potential free flights on real estate developer Harlan Crow’s private jet. The conference promised to look into it.
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Instead, ProPublica found, two successive Financial Disclosure Committee chairs decided behind closed doors to end the inquiry at the outset and chose not to seek any evidence before the committee announced that it hadn’t seen any to support the allegations.
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The Administrative Office, which answers to the Judicial Conference, had only about 12 full-time staffers in its financial disclosure division in 2022 and a rotating crew of temps. They review more than 4,000 disclosure reports each year. Instead of closely scrutinizing those disclosures, staff relies on the “honor system,” several of the people said.
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Wendy Smith, a former top attorney at the Administrative Office’s financial disclosure division, said the agency was structured to give the judiciary the appearance of complying with transparency laws, when it actually doesn’t. “They do not have a functioning financial disclosure and ethics program,” Smith said, “and I don’t believe they want one.”
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Last month, the Supreme Court adopted its first-ever code of conduct but stopped short of defining an enforcement mechanism. That, coupled with the Judicial Conference’s record, has led some observers to assert that the new rules will ultimately change little.
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That’s the way some judges like it.
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Four former committee members said that although they were responsible for enforcing transparency laws, they understood that they had no actual power or personnel to conduct investigations. In the decades since the ethics law passed, the conference has never referred a single case of a potentially falsified report to the Justice Department for further review.
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The judges at the appellate and district levels have long been governed by an ethics code and subject to misconduct investigations by local panels of colleagues. Experts have noted that there is no similar procedure for the Supreme Court justices.
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Other judges and court observers have offered a more institutional explanation for the committee’s apparent unwillingness to investigate Thomas: The Judicial Conference may have no authority over Supreme Court justices to begin with.
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ProPublica and other outlets have detailed lavish gifts and trips that ultrawealthy conservatives have given to Thomas and, and in one instance, to Justice Samuel Alito. They failed to disclose the largesse, including private plane rides — the same alleged lapse that the Judicial Conference balked at 11 years ago. (Thomas has since acknowledged he should have reported a real estate transaction with Crow and amended a past disclosure to reflect the sale.)
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In recent months, some Democratic lawmakers have once again called for the Judicial Conference to investigate Thomas and refer the case to the attorney general. And again, the conference referred their complaints to the Financial Disclosure Committee.
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The conference’s 2012 handling of the Thomas affair was emblematic of its deferential treatment of judges, according to documents and officials. For years, judicial leaders insisted on preserving perks like free travel and deflected calls for congressional reform when the gifts came to light.
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But the judiciary has largely managed to prevent substantive reform from Congress, including at least two failed Senate bills that would have restricted travel and gifts or created an independent ethics monitor.
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The Administrative Office does not consider itself a regulator. But staff inside its tiny financial disclosure division are responsible for screening judges’ financial disclosures. Employees there describe a flawed process.
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Those who examine the disclosure forms are often temps. Two former examiners told ProPublica they did not recall any training on how to review the gift portion of the reports.
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The process amounts to the “honor system,” six former staffers and judges on the Financial Disclosure Committee said.
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Staff inside the office also play a crucial role in shaping the judiciary’s rules for what gifts judges can accept and what they need to disclose. That, too, has at times been used as an opportunity to help judges preserve their perks, records and interviews show.
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In late 2022, after decades of criticism, the judicial conference began work to refine the language about financial disclosure requirements in the judiciary’s rules.
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The goal for some of the other proposed edits, deputy general counsel Laurina Spolidoro explained in an email obtained by ProPublica, was to present “a consideration of factors” to judges “rather than drawing bright lines.”
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To Smith, Spolidoro’s subordinate at the time, the message was clear: judges wanted the ability to continue accepting certain gifts without having to disclose them.
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Smith said she quit the Administrative Office because she wasn’t allowed to do her job as an ethics attorney, and when she tried to make changes to the financial disclosure program, she was stripped of her duties.
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Smith said she was told by Spolidoro and others that “the judiciary is outside the Ethics in Government Act.”
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