Clarence Thomas's problems are also a John Roberts problem
The Chief Justice wrote in 2011 that the justices didn't need a Code of Conduct. Roberts needs to address whether he still thinks that. Also: A busy week ahead at SCOTUS.
As story after story after story comes out about the ways in which Justice Clarence Thomas has decided not to share accurate details of his financial circumstances while on the court, Thomas has had nothing to say since his initial statement after the first story, which was covered at Law Dork.
This isn’t particularly surprising. Of everyone on the Supreme Court, Thomas has for most of his tenure clearly been the justice least concerned with what others think of him. An editorial from The Washington Post or New York Times would not shame him; he would wear it as a badge of honor.
Given the fact that the House is controlled by Republicans who are in turn controlled by some of the most extreme members of their party, it’s honestly not Thomas whose response I’m really waiting for right now.
It is, rather, Chief Justice John Roberts who should be pressed to account as to whether he thinks Thomas’s relationship with Harlan Crow is appropriate and whether Thomas’s actions concealing the extent of that relationship from the public are acceptable. (And, no, recent minor disclosure updates don’t answer the questions.)
Because of the Republicans’ House control, it falls to the Senate, and specifically to Judiciary Committee Chair Dick Durbin, to investigate these claims and to hold Thomas and Roberts to account.
Roberts is key to this, because Roberts is part of why we’ve gotten here.
“Some observers have recently questioned whether the Judicial Conference’s Code of Conduct for United States Judges should apply to the Supreme Court,” Roberts wrote — in his end-of-year report in 2011.
In the report, he was careful to note that the Judicial Conference’s Code of Conduct for federal judges does not apply, “by its express terms,” to the justices, “reflect[ing] a fundamental difference between the Supreme Court and the other federal courts.” Roberts explained that the Supreme Court was created by the Constitution, whereas lower federal courts were created by Congress. Because of this, Roberts continued, the Judicial Conference, which was also established by Congress, has no authority over the Supreme Court.
He then pivoted, claiming somewhat infamously at this point that “[a]ll” the justices “consult” the Code of Conduct to figure out their “ethical obligations.” He noted that they also “may turn to judicial opinions, treatises, scholarly articles, and disciplinary decisions” and “seek advice from the Court’s Legal Office, from the Judicial Conference’s Committee on Codes of Conduct, and from their colleagues.”
Then, the magic: “For that reason, the Court has had no reason to adopt the Code of Conduct as its definitive source of ethical guidance.”
That 2011 report from Roberts was, in some ways, a response to a vein of reporting about Justice Clarence Thomas and “an unusual, and ethically sensitive, friendship that appears to be markedly different from those of other justices on the nation’s highest court.”
The friendship being discussed was with … Harlan Crow.
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The 2011 reporting, along with other ethical questions raised about several justices, led Democrats to send a letter seeking “toughened ethics standards” and to ask questions about ethics rules at a congressional hearing that featured testimony from then-Justices Antonin Scalia and Stephen Breyer.
All of that led Roberts to write his end-of-year report about how the justices don’t need a Code of Conduct.
More than 11 years later, it’s clear this isn’t working for the court. It’s obviously not working for Thomas. And, because of that, it’s not working for America.
Roberts has a responsibility — as the Chief Justice of the United States, as the head of the federal courts, and as the person who told the public that “the Court has had no reason to adopt the Code of Conduct” — to update us on whether he still thinks that is true.
If he does, it’s clear that he himself has no concern about the ethics decisions of his colleagues.
If he doesn’t, he needs to tell us how he — and his colleagues — plan to address it.
In either event, he should do so, under oath, before the Senate Judiciary Committee.
Durbin and the Judiciary Democrats have already sent the letter.
It’s time for the hearing. And soon.
And this time around, we need action.
This week at SCOTUS
In addition to ethics, the underlying reason why all of this matters, of course, is that Justice Clarence Thomas remains one of nine votes on the U.S. Supreme Court.
This week alone features Monday arguments in a pair of immigration cases, Tuesday arguments in a key case about religious accommodations under Title VII of the Civil Rights Act of 1964, and Wednesday arguments over an important First Amendment question.
We also expect further word from out of the court about the mifepristone challenge, specifically regarding the requests from the Justice Department and Danco Laboratories for a stay of U.S. District Judge Matthew Kacsmaryk’s order pending appeal sometime before 11:59 p.m. ET Wednesday, when Justice Samuel Alito’s administrative stay is currently set to end.
In addition to arguments this week and the mifepristone stay applications, the Supreme Court is expected to issue opinions in argued cases on both Tuesday and Wednesday morning before arguments beginning at 10 a.m. each day. And, at 9:30 a.m. ET Monday, the court is expected to issue orders out of last week’s private conference of the justices — when we’ll get word of any new cases the justices have granted.
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