What good, after all, is the high court’s new code of ethics if no one enforces it — or pays much attention to it at all.
Earlier this month Thomas filed his required financial disclosure statement for 2023, which in his case included a pair of “amendments” to his filing for 2019, self-disclosing for the first time (they had earlier been reported by ProPublica) two free vacation trips paid for by Texas billionaire Harlan Crow. One was to Bali and the other was a trip to the all-male retreat at the private Bohemian Grove in Monte Rio, Calif.
The trips, according to Thomas, had been “inadvertently omitted” from his 2019 filing. Days later, the Senate Judiciary Committee disclosed three more trips, now confirmed by Crow’s lawyer under threat of subpoena, but never disclosed by the justice.
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But the question is how many times a Supreme Court justice can plausibly claim to make the same “inadvertent error,” and when does that become a “willful omission” and, therefore, a violation of the Ethics in Government Act.
It’s that 1978 act, passed in the wake of the Watergate scandal, that requires most high-ranking federal officials to file those financial disclosure statements in the first place. Violations are ultimately referred to the attorney general for enforcement. The tricky part is that in the case of a justice, that referral must come from the Judicial Conference, the national governing body for the federal courts, made up of fellow judges.
Courage has not been that group’s distinguishing feature.
Senator Sheldon Whitehouse, as chair of a Judiciary Committee subcommittee on court oversight, has repeatedly tried to light a fire under the Judicial Conference — his most recent letter, cosigned by his Republican colleague Hank Johnson, was sent June 17. The letter lists 23 “likely undisclosed gifts and income from Harlan Crow” and his companies to Thomas and 12 similar “undisclosed gifts and income” from other donors and basically asks what the Judicial Conference intends to do about it.
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After all, shortly after Thomas’s disclosure filing (and its amendments) were made public, the entire Senate Judiciary Committee, which has launched its own investigation, released evidence of three trips, courtesy of Crow, that Thomas had yet to own up to. The committee also got confirmation from Crow’s lawyer that Thomas spent eight days aboard Crow’s yacht during that Bali trip and flew there and back on Crow’s private plane — other facts (and rather costly items) that Thomas failed to disclose in his recent amended filing.
The other trips aboard Crow’s jet revealed by the committee were to Montana (in a region near Glacier National Park) in 2017, a 2019 round trip from Washington to Savannah, Ga., and a 2021 round trip between Washington and San Jose, Calif.
A recent analysis by the judicial reform group Fix the Court calculated that over the past two decades on the bench Thomas has received gifts worth more than the combined total of all gifts to his current and past colleagues during the same period. The group also factored in “likely” gifts, based on media reports, including that Bali vacation and several other Bohemian Grove visits.
The pattern is clear, dating back to at least 2011. That was the year Common Cause disclosed that Thomas’s wife, Ginni, had worked for Hillsdale College in Michigan, the Heritage Foundation, and the Republican leadership in the House of Representatives, among others, yet Thomas had never listed her income or her employers on his disclosure forms as required. In 2011 he amended 13 years worth of disclosures explaining the lapses as a “misunderstanding of the filing instructions.”
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The Judicial Conference did nothing.
In 2023, Thomas amended his 2014 filings to include a real estate deal in Savannah with Crow in the wake of disclosures by ProPublica. And this year his amendment covered those two lapses in 2019, which we now know didn’t come close to covering the actual number of trips taken.
So how many passes does one Supreme Court justice get?
That’s the question Whitehouse has been asking for more than a year.
“We brought Justice Thomas’s financial disclosure omissions to the Judicial Conference’s attention in April 2023, and asked that the Judicial Conference refer the matter to the Attorney General to determine whether the omissions were willful,” the June 17 letter said. “We have continued to update the Conference as evidence of additional undisclosed gifts emerged.”
The Conference last met in March but, as the letter pointedly notes, has not made public any report of those proceedings, including whether it has made any determination about whether Thomas’s omissions were “willful.”
Senate Judiciary Committee Chair Dick Durbin has put most of his efforts into passage of the Supreme Court Ethics, Recusal, and Transparency Act — thus far unsuccessfully.
The bill would require Supreme Court justices to adopt a binding code of conduct — unlike the halfway measure it adopted last year which has no enforcement mechanism — and require justices to publicly explain their recusal decisions.
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“Today’s ethics problems are symptomatic of a Court that has ridden roughshod over any attempt to cabin its power,” a recent Harvard Law Review article said. It suggested a deeper involvement by Congress as “the most viable way to restore the damaged legitimacy of this Court.”
Whitehouse and Durbin have taken different approaches to that, but they could surely use more support from their congressional colleagues.
And Chief Justice John Roberts, who has been an ardent defender of the court’s independence from congressional oversight, must surely understand that continuing to ignore ethical breaches among his colleagues is doing permanent damage to what was once a trusted institution.
Editorials represent the views of the Boston Globe Editorial Board. Follow us @GlobeOpinion.
