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Why it's unlikely ethics rules on Supreme Court gift disclosures will work

Justices of the US Supreme Court pose for their official photo on October 7, 2022.
Olivier Douliery
/
AFP via Getty Images
Justices of the US Supreme Court pose for their official photo on October 7, 2022.

Updated April 10, 2023 at 10:03 AM ET

The Supreme Court is facing ethics questions since a ProPublica investigation reported that Supreme Court Justice Clarence Thomas received luxurious trips from Republican donor Harlan Crow for more than two decades. The investigation says he failed to report these trips in his annual financial disclosures.

Stricter regulations went into effect several weeks ago, saying that federal judges, including Supreme Court justices, must disclose when they receive gifts and "personal hospitality."

But Northwestern University law professor emeritus Steven Lubet told NPR's Leila Fadel that he doubts the justices will comply with stricter disclosure rules.

This conversation has been edited for length and clarity.


Interview highlights

On why Lubet doubts Thomas will comply with disclosure rules

Well, there's no enforcement mechanism. And in the past, the justices have adhered to them when they wanted to and not when they didn't. Justice Thomas says he'll follow the new interpretation. I don't really doubt him about that, but it's all very contingent because Chief Justice [John] Roberts and before him, Chief Justice [William] Rehnquist, have both declined to say that the rules were validly applicable to the U.S. Supreme Court.

They're the Supreme Court. They do what they want.

On who enforces the rules that the Supreme Court makes

Well, they make the rules. There's an enforcement mechanism that, you know, the judges have life tenure. Short of impeachment, there's no penalty that's applicable to the judges at any level in the federal courts. There is a system in the lower courts of reporting, and it can lead to censure or reprimand, but it does not apply to the U.S. Supreme Court.

On whether there were pre-existing financial disclosure rules for federal judges and Supreme Court justices

There were rules before March 14th regarding gift disclosure. The justices said that they would comply with them. They do file annual reports disclosing, disclosing gifts. I would say that the previous rules definitely covered at least some parts of Justice Thomas's excursions with [Harlan] Crow. The new rules are much more specific and would absolutely require reporting of this sort of travel and lavish hospitality.

On what could be the answer to conflict of interest issues with Supreme Court justices

The Supreme Court is the only court in the United States that has never adopted a written code of ethics. Every other court has a written code. The U.S. Supreme Court has strenuously resisted announcing what its own standards of ethics are. That should be remedied. They should adopt a code of conduct. At the very least, this will let the public know what the justices expect of themselves, and there will be transparency that we have not had in the past.

Mohamad ElBardicy and Kelley Dickens edited this interview for broadcast. contributed to this story

Copyright 2023 NPR. To see more, visit https://www.npr.org.

Corrected: April 11, 2023 at 12:00 AM EDT
A previous version of this story misquoted Steven Lubet as saying, "I don't really doubt him about that, but it's all very contingent because Chief Justice [John] Roberts and before him, Chief Justice [William] Rehnquist, have both said that the rules were validly applicable to the U.S. Supreme Court" rather than, "I don't really doubt him about that, but it's all very contingent because Chief Justice [John] Roberts and before him, Chief Justice [William] Rehnquist, have both declined to say that the rules were validly applicable to the U.S. Supreme Court."
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Destinee Adams
Destinee Adams is a news assistant on Morning Edition and Up First.