Editor’s note: Julian Zelizer, CNN political scientist, professor of history and public affairs at Princeton University. He is the author and editor of 25 books, including the New York Times bestseller:Myth America: Historians debunk the biggest lies and legends about our past(Basic books). Follow him on Twitter @julianzelizer. The opinions expressed in this commentary are his own. See more opinions on CNN.
The latest ProPublica story about Judge Clarence Thomas is a powerful reminder that we need a code of conduct for the Supreme Court. While certainly most Americans would hope that judges could be trusted to act ethically, Thomas’ behavior suggests otherwise.
ProPublica report disclosed Thomas’ disturbing ties to Harlan Crow, a major Republican donor. According to the report, Thomas has enjoyed a number of benefits over the last 20-plus years of their relationship, including cruising on Crowe’s 162-foot yacht, living on Crowe’s properties in the Adirondacks and East Texas, and using Crowe’s private jet. According to the report, “the extent and frequency of Crowe’s apparent gifts to Thomas have no known precedent in the modern history of the U.S. Supreme Court.”
On Friday, Thomas said he was not disclosing the luxury trip paid for by Crowe, whom he named as a family friend, because he was told at the time it was not necessary. The Judicial Conference, the governing body of the courts, has only recently adopted broader guidelines when it comes to revealing free rides, food and other gifts, Thomas said he “intends to follow this guide in the future.”
However, revelations about Thomas’s many luxury trips have raised inevitable questions about his judicial independence. It doesn’t help that the ProPublica report came after Thomas failed to recuse himself in cases involving reasons why his wife advocated. Given the ongoing crisis in the legitimacy of the Supreme Court, this latest report is yet another blow to both the highest court and the Republic.
Somewhere, the late Supreme Court Justice Abe Fortas must be shaking his head, wondering how Thomas got away with it all. In 1968, President Lyndon B. Johnson appointed Fortas as Chief Justice. But Republicans and Southern Democrats thwarted the appointment and took advantage of his agreement to receive a $15,000 honorarium from American University, a practice that was not unheard of at the time – against him. Fortas then withdrew his name from consideration. (Later, another accusation appeared. that Fortas took a $20,000 fee from a Wall Street financier who was later jailed for securities violations. Fortas, who denied having done anything wrong, resigned from the Supreme Court in 1969).
But there is little sign that Thomas will voluntarily step down because of these revelations. Ultimately, even more troubling than his behavior is the fact that the Supreme Court does not have its own code of conduct, although it does have one that applies to other federal judges. And if the Supreme Court does not take steps to pass it on its own, Congress must act quickly to pass legislation requiring judges to be ethical.
In 2019, Supreme Court Justice Elena Kagan said that Chief Justice John Roberts was seriously thought about the code of ethics. But four years later, the code has still not been adopted. Roberts, an institutionalist by nature, seemed unmoved by the idea, arguing that judges were already “heeding the code of conduct” that exists for other federal judges, which calls for avoiding even “The appearance of the inappropriate“.
In February, the American Bar Association supported the idea. warning that “the absence of a clearly articulated binding code of ethics for judges jeopardizes the legitimacy of the court.”
And just days ago, Democrats in the Senate, including Maryland’s Chris Van Hollen and Rhode Island’s Sheldon Whitehouse, attempted to propose language in next year’s funding bill that would require the Supreme Court to create a transparent process to determine when recusals are needed. and ethical investigations. .
“It is unacceptable,” Van Hollen said, “that the Supreme Court has absolved itself of the responsibility that extends to all other members of our federal courts, and I believe that Congress should take action to address this issue.”
However, many senior Republicans opposed the plan or voiced their doubts. As South Dakota Senator John Thune said in 2022“I don’t like the idea of becoming overly prescriptive…especially with Supreme Court judges. They generally have a pretty good sense of when to recuse themselves and when not to.”
Unless the Supreme Court finally takes action and adopts a code of conduct, legislation is needed to build public confidence in the high court and prevent ethical issues or potential conflicts of interest from continuing to plague the public. Thomas is not unlike former President Donald Trump in that he showed how far powerful officials can go if they don’t feel held back by the informal fences that guided their predecessors. The absence of institutional rules makes it possible for officials to misbehave.
With new revelations about Thomas, perhaps the Supreme Court can adopt its own code of conduct. If not, there are promising signs bipartisan support in Congress and senators should take the opportunity to push for a code of ethics. If reforms don’t happen, Thomas may see no reason to abandon this behavior, paving the way for other colleagues now and in the future to follow suit. The results will be disastrous for the reputation of the courts and the legal framework that underpins our state.
An earlier version of this article incorrectly listed South Dakota Senator John Thune.