Oh, for the good old days! It used to be that we only needed to concern ourselves with the substance of the Supreme Court’s opinions. There were some doozies. In DC v. Heller, the court held that the clause concerning a “well regulated militia” in the second amendment was essentially inoperative. In Citizens United v. FEC, it held that corporations and unions possessed the same first amendment rights as physical citizens, allowing vast amounts of political funding from these groups. But we did not feel concerned about their ethics.

Times have changed. First were the revelations concerning Clarence Thomas’ (unreported) lavish vacations, real estate transactions and other gifts from a billionaire. His wife has created controversy for her roles in the January 6 events and for accepting a six-figure salary leading an organization funded by that same billionaire. Neil Gorsuch joined the fray with the report that he sold his part interest in a 3,000 square-foot fishing “cabin” within days of his confirmation to an unnamed person who turned out to be the head of a law firm. Chief Justice John Roberts is not immune; there are reports that his wife has received $10 million in commissions for recruiting for law firms with business before the court.

Roberts has provided a brief statement on ethics in response. It contains some interesting assertions.

While justices may consult a wide variety of sources in determining ethical conduct, there are no rules they must follow. (How can a citizen be assured that the selection of ethical guidance will lead to anything other than cherry-picking justifications?)

The main statement addresses the “appearance of impropriety” only insofar as speaking engagements are concerned. You have to get to the appendix before there is any mention of the relationship between gifts and impropriety. (It is amazing that gifts to justices are given such little prominence. The section on impropriety contains a requirement that the giver have a “substantial interest” in the case in order for impropriety to exist. Is it not true that given the precedent-setting nature of Supreme Court opinions, they affect far more than the named parties? Would not billionaire Harlan Crow (Thomas’ benefactor) have had an interest in Citizens United? Did the victims of Ahmad Al Aliwi Al-Issa have an interest in Heller?)

Roberts asserts that cases must be heard by the entire court because there is no substitution mechanism as is available in the lower courts. Therefore, recusals should be minimized. (Is Roberts lobbying for a system of justice alternates in his claim for minimal recusal? It would be straightforward to have the court expanded or a provision made to have chief justices of Federal Appeals Courts empowered to substitute on a rotating or random basis.)

The chief justice of China’s Supreme Court has been quoted saying they must resist “Western ideas of judicial independence.” Perhaps America should give judicial independence (from special interests) a try.

Tom Thomas lives in Louisville.