HIGHEST COURT LOWEST STANDARDS: LACK OF FINANCIAL TRANSPARENCY LEADS TO RECORD LOWS IN SUPREME COURT APPROVAL

Author: Charles Doughman, Associate Editor

In the past year, public faith in the Supreme Court has reached an all-time low, and while there is a similar trend among other branches of government, this shift is particularly noteworthy due to the high level of trust the Court has been afforded historically. [i] While a portion of this can be attributed to the Court tipping toward the conservative side, the decrease in trust is noted across the political spectrum to varying but significant degrees. [ii] Democrats' trust in the Judicial Branch declined by half in the past year, with Independents following a similar pattern.  While Republican approval has not fallen to that same degree, it has seen an unprecedented fluctuation in approval ratings in the past ten years. [iii] Some have attributed these changes to the increased perception of the politicization of the Supreme Court in recent times; others have pointed to a lack of transparency and integrity, given recent scandals across the Court. [iv]

Among these scandals is that Justice Thomas has had numerous interactions with a well-known billionaire mega-donor, Harlan Crow, many of which included lavish gifts. [v] These interactions include Harlan Crow purchasing the home of Justice Thomas’s mother. Harlan then proceeded to make thousands in renovations and allowed Justice Thomas’s mother to stay there rent-free. [vi]  A federal disclosure law passed after Watergate normally requires justices and other officials to disclose the details of most real estate sales over $1,000. Thomas never disclosed his sale of the property. [vii] While that alone is enough to question the influence Harlan Crow may have on the justice, their questionable interaction extends even further. [viii] Justice Thomas has also accepted luxury travel from Harlan Crow virtually every year for decades, including private jet flights, international cruises on Harlan’s superyacht, and regular stays at his private resort. [ix]

Justice Gorsuch has also had ethically questionable interactions during his time on the Court. [x] Nine days after he was confirmed by the Senate for a lifetime appointment on the Supreme Court, Brian Duffy, the chief executive of Greenberg Traurig (one of the nation’s biggest law firms with a robust practice before the high court), purchased a 40 acre stretch of property from Gorsuch which he had been trying to sell for years. [xi] Gorsuch did not disclose the purchaser of this property on his forms for the year, and while Supreme Court rules do not prevent justices from engaging in financial transactions with people with interest in Court decisions, Justice Gorsuch’s dealings with Duffy expose the weakness of the Court’s current disclosure procedures. [xii] A sale like this would raise ethical problems for officials serving in most other branches of government, but the Supreme Court is able to set its own rules. It has unilaterally allowed justices to make their own decisions about when and how to report outside gifts and income. [xiii]

The absence of a firm code of ethics for the Supreme Court stands in contrast to most other branches of the U.S. government, including the lower court judges.[xiv] The code of conduct for lower court U.S. judges says judges should “avoid impropriety and the appearance of impropriety in all activities,” and “discourages frequent transactions or continuing business relationships with lawyers or other persons likely to come before the court” on which the judge serves.[xv] This standard is higher than the vague and often toothless standard to which the Supreme Court holds themselves. [xvi] Given that our highest Court is held to the lowest standard, it is little wonder that faith in their ability to fairly and neutrally adjudicate cases is at an all-time low. [xvii] The recent examples of impropriety from the Justices of questionable ethical relations have shown they are unable to properly moderate and disclose their own actions. [xviii] It has become clear that the Supreme Court needs a clear enforceable code of ethics if they expect to regain the trust their institution has historically held. [xix]

[i] Jeffrey Jones, Supreme Court Trust, Job Approval at Historical Lows, Gallup (September 29, 2022), https://news.gallup.com/poll/402044/supreme-court-trust-job-approval-historical-lows.aspx.

[ii] Id.

[iii] Id.

[iv] Justin Elliott, Joshua Kaplan & Alex Mierjeski, Billionaire Harlan Crow Bought Property From Clarence Thomas. The Justice Didn’t Disclose the Deal., ProPublica (April 13, 2023, 2:20 PM), https://news.gallup.com/poll/402044/supreme-court-trust-job-approval-historical-lows.aspx

[v] Id.

[vi] Id.

[vii] Id.

[viii] Id.

[ix] Id.

[x] Heidi Przybyla, Law firm head bought Gorsuch-owned property, Politico (April 25, 2023, 4:30 AM), https://www.politico.com/news/2023/04/25/neil-gorsuch-colorado-property-sale-00093579

[xi] Id.

[xii] Id.

[xiii] Id.

[xiv] Id.

[xv] Id.

[xvi] Ethics in Government Act of 1978, Pub. L. No. 95-521, 92. Stat. 1824-1867 (1978).

[xvii] Id.

[xviii] Id.

[xix] Heidi Przybyla, Law firm head bought Gorsuch-owned property, Politico (April 25, 2023, 4:30 AM), https://www.politico.com/news/2023/04/25/neil-gorsuch-colorado-property-sale-00093579