Ethics audits the new normal for Supreme Court

Book sales and summer teaching gigs are the latest flashpoints in the Supreme Court’s trail of ethics gaffes.

by Kelsey Reichmann, Court House News, July 11, 2023

WASHINGTON (CN) — New revelations on ethics lapses at the Supreme Court are highlighting a deeper-rooted issue with rules of conduct on One First Street that may be out of reach for even the most inspired lawmakers. 

Sonia Sotomayor is the latest justice to sit in the ethics hot seat after an investigation by The Associated Press found that her taxpayer-funded staff was involved in facilitating the justice’s book sales. Emails and other documents showed Sotomayor’s assistant pressing institutions that hosted speaking events to purchase additional copies of the justice’s books. In one instance, the assistant told a library official the purchase of 250 copies of a book was “definitely not enough.” 

​​“Is there a reminder going out that people need to purchase a book at the event or bring a book to get into the signing line?” Anh Le, Sotomayor’s legal aide, wrote. “Most of the registrants did not purchase books.”

The use of government resources for personal financial gain is barred under ethics rules for members of Congress and those in the executive branch. But the absence of an ethics code for the high court leaves a gray area for enforcing this kind of regulation on the justices. 

In a statement to the AP, the court said Sotomayor and her staff comply with judicial ethics guidance and only recommend a number of books based on audience attendance. 

The outlet's review of thousands of public records surrounding the court also unveiled lucrative summer teaching stints for the justices. All the justices must abide by the $30,000 earnings limit for teaching gigs, but some law schools pitched positions as all-expense-paid getaways where the justices could take advantage of perks while teaching. 

In a 2010 proposal to Sotomayor, the University of Hawaii law school’s dean said the university would pay for first-class airfare, hotel accommodations and all other travel expenses if the Obama appointee took up a jurist-in-residence position. If she needed more convincing, the dean said, she could just ask her colleagues — Justices Ruth Bader Ginsburg, Anthony Kennedy and Stephen Breyer — who had participated in the program. Justices Samuel Alito and Antonin Scalia also participated in the program. 

The school appeared eager to accommodate the justices’ other plans outside of the teaching they were there to do. 

“We would like to propose a schedule that suits his preference (e.g. time of day to start, other activities such as golf, snorkeling, hiking, cano(e) paddling, etc.) as well as activities and visits Mrs. Alito would prefer,” a school official wrote to Alito’s staff. “What I do recall is that Justice Alito would prefer starting his day after 10 a.m. and leave some ‘down time’ for some much needed, no doubt, rest and relaxation?”

The University of Hawaii wasn’t alone in offering justices this perk. The Antonin Scalia School of Law at George Mason University in Virginia flew Justices Neil Gorsuch and Brett Kavanaugh to Italy, Iceland and England despite its campus being across the Potomac River from the Supreme Court. The school also paid the justices’ living expenses for their two-week summer courses abroad. 

Justice Elena Kagan also traveled to Iceland for a one-day course. George Mason, however, covered the travel and lodging for her weeklong stay. Justice Amy Coney Barrett got to teach in London for the University of Notre Dame. 

The AP reporting comes on top of a New York Times report this week on Justice Clarence Thomas’ ties to an exclusive group where he flexes his high court privileges. According to the Times, Thomas became a member of the Horatio Alger Association of Distinguished Americans following his confirmation to the Supreme Court. Through the group, the George H.W. Bush appointee rubbed elbows with the wealthy and powerful like the onetime heir apparent to Warren Buffett at Berkshire Hathaway, David Sokol. Thomas reportedly reaped the benefits of these connections through vacation retreats, VIP access to sporting events and lavish parties. Thomas gave the group access to the Supreme Court — a very rare occurrence — for an annual ceremony for new members. 

Thomas has faced ethics scrutiny for accepting luxury vacations from billionaire GOP donor Harlan Crow. The private jet flights and mega-yacht trips went unreported along with the bill for his grandnephew’s education — which was also covered by the real estate mogul — and a six-figure real estate transaction. 

Alito also left private jet flights and gifts on a luxury Alaska fishing trip off his disclosure reports. Both conservative justices delayed filing their 2022 financial reports. 

The Supreme Court itself has done little to combat the growing reputation of ethical carelessness on the bench. Chief Justice John Roberts declined to testify before Congress about the court’s ethics. The George W. Bush appointee did however get his colleagues to sign on to a statement of “ethics principles and practices” that the court was already bound by. 

The Senate Judiciary Committee is planning to vote on the Supreme Court Ethics, Recusal, and Transparency Act which aims at getting the court to adopt an official code of conduct. The bill would also allow the public to submit ethics complaints about the court and establish new rules for gifting and travel. 

However, the prospect of a divided Congress coming to an agreement on the divisive high court is seen as unlikely. Republican Senate Minority Leader Mitch McConnell has already disavowed the move. 

Even if lawmakers are successful in their push for a code of conduct, other ethics concerns could slip through the cracks. AP’s investigation also revealed a pattern of universities using the justices as fundraising tools. Preventing this kind of ethical conflict would be difficult to quantify in a code of ethics. 

“I'm in favor of a code of conduct, but the code of conduct is pretty vague in a lot of ways, in terms of some of the gift rules and fundraising appearance rules,” Gabe Roth, executive director of Fix the Court, said in a phone call.

A change could come from within the judiciary, though reform advocates are not counting on this. 

“I'm not holding my breath with regards to the court itself or the Judicial Conference doing anything as a body so in a large part it's going to be up to individual justices — it always was going to be,” Roth said. “If they start paying for more things or start disclosing more information. I think that remains to be seen.”  

Where court watchers are seeing an immediate change is how the court is being treated by the public.

“It's more about just a new attitude that Americans are having towards the justices, Roth said. “They're not above the law. They're not above reproach … It's a new beat and it's going to keep beating.” 

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SA Editorial: Justices at UH law school

AP: Supreme Court justices and donors mingle at campus visits. These documents show the ethical dilemmas  --  At least one justice, Sotomayor, seemed keenly aware of the peril of being in a setting with donors. Early in her Supreme Court tenure, she rejected a suggestion that she dine with major contributors to the University of Hawaii during a 2012 visit.  “No, the Justice will not do a private dinner at a ‘club’ with Mr. Boas who is a donor of the Law School,” an aide wrote to school officials, referring to Frank Boas, a longtime benefactor.

2013: Frank Boas dies at 82

UH Foundation: Frank Boas--REMEMBERING AN EXTRAORDINARY MAN

AP: Justices teach when the Supreme Court isn’t in session. It can double as an all-expenses-paid trip -- For decades, the University of Hawaii law school has marketed its Jurist-In-Residence program to the Supreme Court as an all-expenses-paid getaway, with the upside of considerable “down time” in paradise.  The justices have enthusiastically participated.

“Your colleagues who were here most recently were Justices (Ruth Bader) Ginsburg, (Anthony) Kennedy, and (Stephen) Breyer, and I believe they all would recommend the experience highly,” the law school’s then-Dean Aviam Soifer wrote in a 2010 email trying to draw Justice Sonia Sotomayor to the school in Honolulu. “We will, of course, cover first-class airfare, excellent hotel accommodations, and all other travel expenses.” …

While locking in details before Justice Samuel Alito’s 2011 visit to Honolulu, a University of Hawaii law school official, Cyndi Quinn, promoted the program’s flexibility….

“We would like to propose a schedule that suits his preference (eg. time of day to start, other activities such as golf, snorkeling, hiking, cano(e) paddling, etc.) as well as activities and visits Mrs. Alito would prefer,” Quinn wrote Alito’s staff. “What I do recall is that Justice Alito would prefer starting his day after 10 am and leave some ‘down time’ for some much needed, no doubt, rest and relaxation?”

Besides Ginsburg, Kennedy, Alito and Breyer, Antonin Scalia and Sotomayor are the other justices who served on the court in the last decade and who participated in the program, which the local law firm Case Lombardi currently helps sponsor.

Emails and other records provided by the school show the justices often taught a handful of classes, met with local dignitaries and frequently dined — with the exception of Sotomayor — at private clubs or the private residences of prominent school donors. Sotomayor’s staff was adamant in emails to the school that she thought it inappropriate to be mingling with donors….