This is why it’s difficult to rein in the Supreme Court

Analysis by Zachary B. Wolf, CNN

(CNN) — The latest ProPublica report detailing Clarence Thomas’ lavish lifestyle is sure to reignite calls for greater oversight of the Supreme Court, but don’t bet on reform happening anytime soon.

That’s because there’s insufficient appetite in Congress to pass legislation and it’s unclear what, if any, authority the Justice Department has to initiate prosecutions, especially since justices’ behavior doesn’t appear to have broken any laws.

There’s also the little matter of the justices themselves stubbornly resisting any attempts to have a code of ethics imposed upon them.

The court of public opinion may have its own ideas, but it’s going to be immensely difficult to bring the Supreme Court to heel.

How we got here

The list of problematic ethics developments goes like this:

► First, the independent investigative journalism group ProPublica reported that Thomas failed to disclose luxury travel financed by his billionaire buddy Harlan Crow, a Republican donor.

► Then, ProPublica reported that Crow bought real estate from Thomas, which Thomas also failed to disclose in 2014.

► CNN later reported the court declined to hear an appeal in a case brought against a company tied to Crow, although it wasn’t clear at the time that Crow had anything to do with the case. Thomas, notably, did not recuse himself from the matter.

None of this is to suggest Thomas exerted any influence on Crow’s behalf. But it does certainly raise questions about ethics and conflicts of interest at a time when public faith in the Supreme Court is sagging.

Thomas blamed bad advice for not disclosing the travel gifts and is set to amend disclosures to retroactively note the real estate deal. Read more from CNN’s Ariane de Vogue.

► But then Politico reported that Justice Neil Gorsuch failed to disclose that he sold nearly $2 million in real estate to the head of a law firm that routinely argues cases in front of the court, which hasn’t helped things. Gorsuch did report that he made between $250,000 to $500,000 on the deal, but the section where a buyer could be listed was left blank. Read CNN’s full report.

► ProPublica reported in June that Alito did not disclose a luxury 2008 trip he took in which a hedge fund billionaire flew him on a private jet, even though the businessman would later repeatedly ask the Supreme Court to intervene on his behalf.

In a highly unusual move, Alito preemptively disputed the nature of the report before it published, authoring an op-ed in The Wall Street Journal in which he acknowledged knowing billionaire Paul Singer but downplaying their relationship.

► Since then, ProPublica has also detailed the broadest look yet at how Thomas’ social circle has funded – with limited disclosure to the public – a regular stream of gifts and hospitality.

What are justices saying

A series of findings about Supreme Court justices failing to fully disclose gifts and real estate deals led to a rare moment of unity.

Conservative and liberal justices joined together to say in a statement in April that they’re quite happy with the current system by which they voluntarily follow ethics guidelines. No changes needed. Independence and security, they argue, make the Supreme Court a special case.

Alito went further, telling The Wall Street Journal in July, “No provision in the Constitution gives them the authority to regulate the Supreme Court – period.”

Far from satisfying anyone growing concerned about ethics at the court, these statements seem as though the justices feel the rules are optional for them.

Could Congress take action?

Sources in both parties say there’s no chance that Congress will pass new legislation to implement tougher ethics standards on justices..

The Democratic-led Senate Judiciary Committee approved a bill in July along party lines that would create a code of ethics for Supreme Court justices, who are not bound to the same code of conduct that applies to lower court judges.

But it’s unclear when – or if – it will get a vote on the floor, sources say, and even if it does get a vote, it has almost no chance of winning at least nine Republican senators in order to get 60 votes to break a filibuster. Republicans say it’s up to the court – not Congress – to impose new rules, and Chief Justice John Roberts has resisted Congress’ efforts, citing concerns about maintaining judicial independence.

In addition, Speaker Kevin McCarthy and House Republicans are strongly opposed to the bill and have no interest in this issue, so it has zero chance of passing the House.

Above the law?

Numerous good-government groups have called for new ethics rules for justices. In April, I talked to Walter Shaub, the former director of the US Office of Government Ethics, who is now involved with the Project on Government Oversight.

POGO and Shaub have argued that Thomas, by accepting rides on planes and yachts, clearly violated ethics law. Read their complaint. The problem, as I learned, is there is very little oversight of the court.

Excerpts of our conversation, conducted by phone, are below.

No means to hold them accountable

WOLF: You know more about government ethics than just about anybody. What do you think when you read these revelations about what’s left out of these disclosures from justices Gorsuch and Thomas?

SHAUB: I think there’s two things going on here. And they both trace back to a culture of exceptionalism, where the Supreme Court’s justices just feel that they’re above law, above question and above everything else in the government.

The problem is their conduct is worse than other government officials.

And so this idea that they don’t need a code of ethics – I think Dahlia Lithwick, who’s a Supreme Court scholar … she really summed it up best when she said this is the attitude of a monarch.

The idea that you are the law, whatever you do is fine, and there’s no accountability – I get that they can get away with that because they’re not elected. The Supreme Court has interpreted the Constitution as giving its own members lifetime appointments, and the only remedy would be impeachment.

They know that until one party controls 60% of the Senate, they’re never going to be impeached. So this is a case, I think, of absolute power corrupting absolutely.

They simply know that there’s no realistic means to hold them accountable. And so they’re going to keep thumbing their nose at the American people, and they behave more like rulers than public servants.

Their commitment to ethics is essentially voluntary

WOLF: The Supreme Court sent a letter, signed by all nine justices, to the Senate Judiciary Committee. In it, Chief Justice John Roberts says he won’t testify before the committee. And they argue they have voluntarily submitted to ethics rules.

Here are some key quotes from that statement:

“In 1922, Congress instituted the Judicial Conference of the United States as an instrument to manage the lower federal courts. The Judicial Conference, which binds lower courts, does not supervise the Supreme Court. … In 1991, Members of the Court voluntarily adopted a resolution to follow the substance of the Judicial Conference Regulations. Since then Justices have followed the financial disclosure requirements and limitations on gifts, outside earned income, outside employment, and honoraria. They file the same annual financial disclosure reports as other federal judges.”

Essentially, if you read between the lines of it, they suggest that no law actually applies to them.

SHAUB: What does apply to them is the Ethics in Government Act, which establishes the financial disclosure requirements, and it’s explicit about covering the Supreme Court justices.

So this is a misdirection, suggesting that somehow complying with what the Judicial Conference says is voluntary. What’s not voluntary is following the laws of this country that were enacted by Congress.

The Ethics in Government Act of 1978 required disclosure of gifts. It is explicit that the personal hospitality exemption does not apply to gifts from corporations, and is explicit that it only covers food, lodging and entertainment.

There’s no way to characterize a flight on a private plane or a sea voyage as any of those things.

One idea for accountability

WOLF: There is impeachment. There is the idea that the Justice Department could investigate. Are there any other avenues for accountability of the court?

SHAUB: Two options. One is criminal prosecution, which some of the (oversight) groups have advocated. What we advocated is the other option, that the Civil Division (at the Department of Justice) pursue a claim against him (Thomas), demanding $71,000 in civil monetary penalties for every omission. There’s a five-year statute of limitation.

But on these trips he took more than one gift. The plane is one gift. The yacht is another. The resorts are another. Any excursions are others. If you imagine that there were even only two – there were probably more than two – but if there were even only two omissions per financial disclosure report, in those five years that adds up to 10 violations.

And $71,000 apiece, you could be talking over $700,000 in civil monetary penalties. I think that would send a strong message to both Clarence Thomas and these other justices.

These justices may differ politically – and they really are just politicians in robes – but they are uniform in their disdain for government ethics and their disdain for anti-corruption laws.

We saw that when they overturned the conviction of Gov. (Bob) McDonnell from Virginia. They did that in a way that gutted the bribery statute. (Flash back to CNN’s report from that 2016 decision.)

If you read the opinion literally, there’s nothing in the bribery law that would prevent a federal government official from posting on a social media account: Here are the rates for meeting with me. If you want a 15-minute meeting, you’ll have to pay me $1,000. If you want an hour meeting, $4,000.

That would be legal under the bribery statute. It might violate other laws, but according to the Supreme Court, telling somebody they have to pay you for a meeting isn’t a bribe.

But the Supreme Court needs independence, right?

WOLF: There is a valid argument that the court needs to be independent and separate from the executive branch. If suddenly the Justice Department is investigating members of the court, does that not create a different power balance?

SHAUB: Let’s unpack that, because that’s a cute thing they say a lot.

But let’s imagine one of them murdered somebody. The state officials, not even the Department of Justice, would be investigating them.

Or let’s imagine that a Supreme Court justice embezzled, because the judiciary has an enormous budget. Or used federal funds in an unauthorized way by declaring that Supreme Court justices work hard.

We should all be entitled to have the judiciary use the money Congress has appropriated to buy ourselves gigantic row houses in Washington, DC, at taxpayer expense. That would be a violation of federal appropriations law, and you better bet the Department of Justice would investigate that.

So this idea that somehow having independence to issue court decisions, which has nothing to do with corruption, entitles them also to be free of any accountability, any transparency or any ethics rules is absolutely absurd. … This is a fringe view that they get away with having because there’s no oversight.

Few recusals. Fewer explanations

WOLF: Justices recuse themselves from a fraction of cases and, while sometimes it can be implied to have to do with their stock holdings, often they don’t say anything about it. What should be done?

SHAUB: It’s outrageous that these justices who make enormous salaries at taxpayer expense ($285,400 for associate justices and $298,500 for the chief justice), feel that it would be unreasonable for them to invest only in diversified mutual funds.

They’re out there buying and selling stocks and creating conflicts of interest. And a good set of ethics rules could say we’re going to stay out of stocks and we’re going to invest in diversified mutual funds, which all of the high-level officials in the executive branch have to do anyway.

They themselves, the ones that were in the executive branch, also had to do it when they were in the executive branch. But suddenly, they feel that not only is it unreasonable to have to recuse from a case, it’s unreasonable to ask them to avoid an unnecessary conflict of interest.

The percentage of Americans that actually hold individual stocks is relatively small compared to the whole population, and the percentage that hold most of the stocks is tiny. So there’s no reason they have to own stocks.

I don’t own a single stock. I never have, never will, because I always felt that while I was in government, being asked to invest in diversified mutual funds was not an unreasonable sacrifice for public service.

(Related: There are serious efforts to similarly ban stock purchases for members of Congress.)

The issue of Supreme Court spouses

WOLF: The spouses of justices are active politically (Ginni Thomas) and in business (Jane Sullivan Roberts and Jesse Barrett). Their income is not very well documented in these financial disclosures. Neither is who their clients might be. What would you change about how the ethics rules are applied for spouses?

SHAUB: I think that not only should spouses have to include full information about employers, I think they should disclose clients, and I think they should disclose amounts.

The justices themselves should be responsible for having to include a list of all of the cases before the court that implicated the interests of that source of income.

Ethics stands on its head in our country. The strictest rules in government apply to career-level government officials in the executive branch, and the weakest rules apply to the Supreme Court justices and then to the president. The third weakest are (for) members of Congress.

So the people with the most power to do harm have the least accountability to the American people. Officials with far less power to do harm are held to a much higher standard. That is insane. That is government ethics standing on its head.

That’s a vestige of feudalism. … In a republic, the power is supposed to come from the people. So the more power you have, the more disclosure you should make and the more requirements and restrictions you should abide by.

Gorsuch did not violate law. He did violate the justice’s commitment

WOLF: What am I missing here?

SHAUB: One thing I would say to avoid confusion is, technically, Gorsuch did not violate the disclosure law when he didn’t identify the purchaser of that land. Because the law itself does not require disclosure of the identity of the purchaser.

But the court was using that financial disclosure form that included a field for identifying the purchaser. And here’s where their argument is silly. … While not a violation of law, which they claim doesn’t apply to them anyways, it is a violation of the commitment the Supreme Court made to the public about what it would disclose.

And that goes back to the fact that Gorsuch wanted to hide who he was selling it to, which goes back to a consciousness that that was really bad behavior – which goes back to the fact that they really need an ethics code.

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CNN’s Manu Raju contributed to this report.