An ethics code for the Supreme Court

Federal judges must avoid even “the appearance of impropriety,” according to the Code of Conduct for United States Judges, which went into effect in 1973. Specifically, “A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment.”

Interestingly, these requirements do not apply to Supreme Court justices, who are bound by a vague, even nebulous, set of “Ethics, Principles, and Practices.” According to Steven Lubet, a law professor at Northwestern University Pritzker School of Law, the statement “falls far short of a comprehensive code.”

It is now way past time for Supreme Court justices to abide by the same rules of conduct that lower federal judges swear to follow, and here’s why:

Fifty-four years ago on May 15, Supreme Court Justice Abe Fortas resigned amid allegations of his association with Louis Wolfson, a Wall Street financier then under federal investigation for securities fraud. As a practicing attorney, Fortas once represented Wolfson, and he agreed to give Wolfson’s family advice about its foundation for an annual fee of $20,000.

There were never proven allegations of corruption. Only the appearance of corruption and impropriety.

Meantime, for the past 12 years, since 2011, Justice Stephen Breyer, who retired last year, has served as a juror on a committee that awards the Pritzker Architecture Prize, the highest honor in the profession.

While he is not an architect, in the 1990s Breyer helped design the new federal courthouse in Boston, now known as John Joseph Moakley United States Courthouse, named for the former representative for Massachusetts’s 9th Congressional District. According to the New York Times, Breyer “threw himself into the project, studying courthouses, interviewing architects, traveling to see their work.” In 2006, he also provided the introduction to the book “Celebrating the Courthouse: A Guide for Architects, Their Clients, and the Public.”

As a juror, Breyer attends three meetings a year, two in Chicago, and one to visit architectural designs around the world. The Pritzkers are a well-known political Illinois family: The current governor, J.B. Pritzker, has ruled out a run for the Democratic nomination for president this year, but not forever.

If Breyer was (and is) so close to the family, and if the Pritzker Foundation has long paid for his travel, is there an appearance of corruption or impropriety?

These two examples among many provide some context to current reports concerning Justice Clarence Thomas’s failure to disclose his relationship with billionaire and mega-Republican donor, Harlan Crow.

According to the news site ProPublica, Crow paid hundreds of thousands of dollars for Clarence and Ginni Thomas to take lavish vacations on Crow’s private jet to his resorts and elsewhere. ProPublica a week later reported that Crow purchased and renovated the home of Thomas’s mother, with the goal of turning it into a Clarence Thomas Museum after her death. More recently, it turns out, Crow also paid for the private school tuition of Thomas’s grandnephew, of whom he has legal custody, and has been raising as a son.

Thomas did not disclose any of this on his annual financial reports. These paid-for expenses, he said, merely amounted to “personal hospitality.” Even more, for 13 years he did not disclose his wife’s income, though she served on the staff of several conservative organizations. For example, she was paid nearly $690,000 between 2003 and 2007 by the Heritage Foundation.

Virginia Canter, who once worked as an ethics lawyer in the administrations of both Republican and Democratic presidents, is appalled: Thomas “seems to have completely disregarded his higher ethical obligations. When a justice’s lifestyle is being subsidized by the rich and famous, it absolutely corrodes public trust. Quite frankly, it makes my heart sink.”

Judges must never face a question of their integrity. Those who come before them must have complete faith in a judge’s sense of impartiality to dispense a just decision.

One of the most respected conservative judges vehemently supports a code of ethics for Supreme Court justices. Judge J. Michael Luttig, who served with distinction on the U.S. Fourth Circuit Court of Appeals from 1991 to 2006, recently argued that Congress “indisputably has the power under the Constitution” to “enact laws prescribing the ethical standards applicable to the nonjudicial conduct and activities of the Supreme Court of the United States.”

This is not a partisan issue, but an American one that demands immediate attention. Luttig writes, “The Supreme Court should want, without quibble, to subject itself to the highest possible professional and ethical standards that would render the court beyond reproach, because such would ensure to the full extent possible that the court is always beyond reproach in its nonjudicial conduct and activities.”

Jack Fruchtman, who lives in Aquinnah, has written “The Supreme Court and Constitutional Law,” now in its third edition.