Speaker 1: From Bloomberg News and iHeartRadio. It's the big Take. I'm
Speaker 1: West Casova today. Can Supreme Court justices be trusted to
Speaker 1: oversee themselves?
Speaker 2: But a series of recent reports documenting Justice's failures to
Speaker 2: disclose gifts and real estate deals has sparked questions about
Speaker 2: possible reforms, including luxury vacations for Thomas a portion of
Speaker 2: his wife's salary.
Speaker 3: This was one heck of a trip.
Speaker 2: This is not some fishing trip, a five hundred thousand
Speaker 2: dollars island hopping.
Speaker 4: Which fills the same Conservative activists who paid for Thomas's
Speaker 4: vacations and bought his mother's home also paid for his
Speaker 4: grand nephew's private school tuition.
Speaker 1: For weeks now, the US Supreme Court has been in
Speaker 1: a harsh spotlight after disclosures that raise potential ethics questions
Speaker 1: about some of its members, most notably Justice Clarence Thomas,
Speaker 1: who didn't report lavish vacations and other financial benefits he
Speaker 1: received from a Texas billionaire. And he's not alone. Justice
Speaker 1: Neil Gorsich and even Chief Justice John Roberts have also
Speaker 1: come under recent scrutiny. Some prominent lawyers and legal scholars,
Speaker 1: and members of Congress are now calling for more transparency
Speaker 1: along with stronger oversight of the justices, but the Court
Speaker 1: has forcefully pushed back.
Speaker 4: This makes them again the only judges in the US
Speaker 4: who have unlimited discretion to decide whether they're disqualified in
Speaker 4: a particular case.
Speaker 1: That's Stephen Lubitt. He's a law professor and an expert
Speaker 1: on legal ethics. I talk with him in just a
Speaker 1: bit about what, if anything, the Constitution has to say
Speaker 1: about who has the power to oversee the justices. First Bloomberg,
Speaker 1: Supreme Court correspondent and friend of the Big Take podcast
Speaker 1: Gregg's Store, is back to sort through what's happening. Greg.
Speaker 1: Usually when you come on the show, we're talking about
Speaker 1: thorny issues that are before the justices, and today it's
Speaker 1: kind of odd because we're talking about thorny issues about
Speaker 1: the justices.
Speaker 2: Yeah, it's been quite the season for ethical controversies at
Speaker 2: the Supreme Court, most of which are connected to Justice
Speaker 2: Clarence Thomas.
Speaker 1: So there's Thomas, and then there are also questions surrounding
Speaker 1: Chief Justice John Roberts and also Neil Gorsich, one of
Speaker 1: the newest members of the Court. Can you just walk
Speaker 1: through what the various questions are about each of them.
Speaker 2: Sure, and I would say that certainly the questions about
Speaker 2: Roberts and Gorsich are a much lower tier than the
Speaker 2: questions about Thomas. The John Roberts issue has to do
Speaker 2: with his wife's work. His wife is a lawyer. She
Speaker 2: worked as a practicing attorney before he joined the Supreme Court,
Speaker 2: and then she shifted to become a legal recruiter. And
Speaker 2: so the questions about them have to do with the
Speaker 2: payments to her from firms who do work before the
Speaker 2: Supreme Court. No indication that it is violated INNY established
Speaker 2: ethical rules. And you know, really, some people, when you
Speaker 2: talk to ethics experts, say what Jane Roberts did was
Speaker 2: actually what you're supposed to do. She kind of got
Speaker 2: herself out of the line of fire so that she's
Speaker 2: not working at a law firm that is actually practicing
Speaker 2: before the court. She is instead kind of off to
Speaker 2: the side, serving their interests in a different way. The
Speaker 2: factor on the other side is Jane Roberts is an
Speaker 2: independent person and she has a career. And the questions
Speaker 2: we need to ask are do we want to keep
Speaker 2: a spouse of a justice from pursuing their own career
Speaker 2: because of some you know, somewhat indirect potential for some
Speaker 2: sort of conflict.
Speaker 1: So there's Chief Justice Roberts situation. Neil Gorsich also has
Speaker 1: had some questions about a real estate transaction.
Speaker 2: Right, So this is mountain property that he owned with
Speaker 2: a couple other people that was held in an LLC,
Speaker 2: and he sold that property or the LLC sold that
Speaker 2: property more specifically, and that's important just after he was
Speaker 2: confirmed to the Supreme Court. They'd been trying to sell
Speaker 2: it for a while and had a little trouble finding
Speaker 2: a buyer. It turns out the buyer is somebody who
Speaker 2: is a very successful lawyer, and Justice Gorsag on his
Speaker 2: financial disclosure reports did not indicate who the buyer was
Speaker 2: of this property. Really big questions about whether he needed
Speaker 2: to disclose that particular piece of information. I don't know
Speaker 2: that that is clear. Also not clear that the property
Speaker 2: sold or anything other than the market rate. The buyer
Speaker 2: said he has never actually met Justice Gorsage, and so
Speaker 2: there's some real questions about whether there's anything at all
Speaker 2: to see there other than perhaps that it would be
Speaker 2: nice to have more fulsome disclosure rules, so that might
Speaker 2: have come out earlier.
Speaker 1: So both of these instances really came out after there
Speaker 1: started to be very close scrutiny of the justices when
Speaker 1: these other details started coming out about Clarence Thomas, right exactly.
Speaker 2: I think part of what happened here is that folks
Speaker 2: in the media collectively realized that there's some information in
Speaker 2: these financial disclosure reports that maybe isn't as complete as
Speaker 2: you know, or raises a lot of questions, and so
Speaker 2: folks started looking into various aspects of various justices. And yes,
Speaker 2: we're absolutely right. I mean, what really sparked this all
Speaker 2: was that the first report of the first of now
Speaker 2: several reports in Republica about a wealthy Republican donor, Harlan Crowe,
Speaker 2: paying for very lavish vacations for Clarence Thomas and his wife.
Speaker 1: And tell us about Harlan Crowe and what that relationship
Speaker 1: with Clarence Thomas was.
Speaker 2: He is a Dallas based businessman, real estate developer. He
Speaker 2: says he met Clarence Thomas in nineteen ninety six after
Speaker 2: Justice Thomas joined the court and they became friends and
Speaker 2: for more than two decades they have gone on vacations together,
Speaker 2: including places like Harlon Crow's yachts and you know, exotic
Speaker 2: locations like Indonesia and Clarence. Thomas has not been paying
Speaker 2: for these, and he also had a number of private
Speaker 2: jet trips. This is all documented in the pro public report,
Speaker 2: and very little of this was disclosed in Justice Thomas's
Speaker 2: financial disclosure reports.
Speaker 1: And his argument was that he was not required to
Speaker 1: disclose them because Harlan Crowe didn't have business before the court.
Speaker 2: Yeah, and also because the disclosure rules created an exception
Speaker 2: for personal hospitality, So there's not a whole lot of
Speaker 2: question if he just goes and stays for a weekend
Speaker 2: at Harlan Crowe's house, he doesn't have to disclose that.
Speaker 2: The questions had to do with, well, what if where
Speaker 2: you stayed wasn't actually owned by the individual, it was
Speaker 2: owned by a company. There's some fuzziness to the rules.
Speaker 2: They have since been clarified going forward. But the argument
Speaker 2: that Justice Thomas made was that he said he can
Speaker 2: soul did some of his colleagues and concluded he did
Speaker 2: not have to disclose.
Speaker 1: These about our Bloomberg colleague, Zoe Tillman looked through many
Speaker 1: years of Supreme Court cases and found one where one
Speaker 1: of Crowe's companies did have a case before the court.
Speaker 2: Yeah. So in Justice Thomas's statement after the first pro
Speaker 2: public report, he said Harlan Crowe did not have business
Speaker 2: before the Supreme Court. And what Zoe found was there
Speaker 2: was a case almost two decades ago where Trammel Crow Residential,
Speaker 2: which is a company that travel Crow is the name
Speaker 2: of Harlan Crowe's father, and Harlan Crowe's company owned a
Speaker 2: portion of Trammel Crow, so an interest in the case.
Speaker 2: They actually did have a case at the Supreme Court,
Speaker 2: just a case that the Supreme Court turned away. Travel
Speaker 2: Crowe had won down below. It had to do with
Speaker 2: the rights to these architectural plans. The Supreme Court turned
Speaker 2: it away. No indication that Justice Thomas recused. We have
Speaker 2: no reason to think this was actually seriously discussed at
Speaker 2: the Justices conference or that they had any serious chance
Speaker 2: of taking it up. But it was a case where
Speaker 2: a company connected Darling Crow did indeed have business at
Speaker 2: the court.
Speaker 1: And then there's a separate issue that more recently came
Speaker 1: to light about Crow and Thomas having to do it
Speaker 1: paying for tuition.
Speaker 2: So Clarence Thomas and his wife Ginny raised where Clarence
Speaker 2: was the legal guardian for his grand nephew who had
Speaker 2: a very troubled background, and they took a man at
Speaker 2: a very young age and raised him, and Clarence Thomas
Speaker 2: has said like a son. And so the new report
Speaker 2: says that Harlan Crowe paid for a couple of years
Speaker 2: of tuition for this boy at private schools, including a
Speaker 2: military academy, that also was not disclosed. In a tweet,
Speaker 2: one of Thomas's confidants, Mark Pailetta, a lawyer here in Washington, said,
Speaker 2: A it didn't have to be disclosed, and b this
Speaker 2: was actually an act of extreme generosity on the Thomas's
Speaker 2: part to take this boy in and take care of him.
Speaker 2: And they described it as a left wing smear job.
Speaker 1: And there is yet one more financial transaction between Crow
Speaker 1: and Thomas that has been the subject of some scrutiny.
Speaker 2: Yeah, so Clarence Thomas, he and his some family members
Speaker 2: had some property in Savannah, Georgia. Is a house where
Speaker 2: he grew up and Harlan Crowe bought that property and
Speaker 2: it includes a house where Clarence Thomas's mother still lives
Speaker 2: and Harland Crowe paid for some improvements to the property
Speaker 2: as well built a carport. Again, this is all stuff
Speaker 2: that was not reported by the Justice.
Speaker 1: What is Harlan Crowe said about all of these various
Speaker 1: things that would come to light.
Speaker 2: He has essentially said, I am doing things for a friend,
Speaker 2: that the Thomases are dear friends of mine. In the
Speaker 2: case of the house, I was buying that because I
Speaker 2: thought it would be to create a museum at a
Speaker 2: later point. You know, here's where Supreme Court justice grew up.
Speaker 2: He has in the case of the grand nephew, said, look,
Speaker 2: I have done this for at risk kids a lot.
Speaker 2: I have paid for tuition because that's something that I
Speaker 2: think is important. And he has said I do not
Speaker 2: have any business before the Supreme Court. I am doing
Speaker 2: this as a friend.
Speaker 1: And then there is finally one more question surrounding Clarence Thomas,
Speaker 1: and that's the political work of his wife, Ginny Thomas,
Speaker 1: who is one of the strongest advocates arguing to challenge
Speaker 1: the results of the twenty twenty presidential election.
Speaker 2: Yeah, we almost forget about this because we were so
Speaker 2: engrossed in the money spent by Harlan Crowe. But yes,
Speaker 2: Ginny Thomas, as a conservative activist, was actively encouraging folks
Speaker 2: in the Trump administration, particular Mark Meadows, the Chief of Staff,
Speaker 2: to do more to try to overturn the results of
Speaker 2: the election. Those text messages have been made public.
Speaker 5: I would like to thank a great woman named Ginny Thomas.
Speaker 1: Do you know Jinny Thomas.
Speaker 5: She's a great woman, the wife of a great man,
Speaker 5: Justice Clarence Thomas, for her courage and she said that
Speaker 5: she still believes the twenty twenty election was stolen. She
Speaker 5: didn't wilt under pressure like so many others that are
Speaker 5: weak people and stupid.
Speaker 2: Clarence Thomas has not recused himself from any case related
Speaker 2: to the January sixth riot at the Capitol, including a
Speaker 2: case about whether White House papers that would have revealed
Speaker 2: some of this information about his wife, whether those would
Speaker 2: get turned over to a congressional committee. That's the kind
Speaker 2: of the pre existing controversy before all this other stuff
Speaker 2: came out.
Speaker 1: This all raises this question about what justices are required
Speaker 1: to disclose and what they should disclose, because even if
Speaker 1: they don't run, a follow of any ethics policy that
Speaker 1: is written in some regulation doesn't look so good.
Speaker 2: Yeah, So the Supreme Court alone, among federal judges is
Speaker 2: not found by any code of conduct. There is a
Speaker 2: code of conduct that applies to other judges, and the
Speaker 2: Supreme Court has said we looked at that for guidance
Speaker 2: and we essentially follow it. But there is no enforcement mechanism.
Speaker 2: So if there's an allegation that a Supreme Court justice
Speaker 2: violated the code of conduct that they say they follow,
Speaker 2: there's no way to have that looked at by some
Speaker 2: sort of independent body to determine whether there was a problem.
Speaker 1: They police themselves.
Speaker 2: They essentially police themselves, exactly right.
Speaker 1: A lot of people, particularly Democrats in Washington, are not
Speaker 1: satisfied with the idea that the justices are policing themselves,
Speaker 1: especially because of all of these things that we're talking
Speaker 1: about here, and there has been a push to try
Speaker 1: to impose some ethical standards that the Court itself would
Speaker 1: have to follow. But Chief Justice John Roberts has pushed
Speaker 1: back very forcefully against that.
Speaker 2: Yeah, he really has. When Dick Durbin, the chair of
Speaker 2: the Senate Judiciary Commuty, tried to get John Roberts to
Speaker 2: come testify.
Speaker 3: It is critical to our democracy that the American people
Speaker 3: have confidence that judges cannot be bought or influenced and
Speaker 3: that they are serving the public interest, not their own
Speaker 3: personal interest.
Speaker 2: Roberts not only said no, he did it in a
Speaker 2: letter that didn't really acknowledge there was a problem here.
Speaker 2: He just said, look, chief Justices, don't come testify. You know,
Speaker 2: it's basically never happened in history. And they attached this
Speaker 2: what they called Statement of Ethical Principles and Practices, which
Speaker 2: all nine Justices sign, which basically just regurgitated things that
Speaker 2: he and others have said before this is how we
Speaker 2: do things, and didn't really advance the ball very much.
Speaker 2: So there wasn't a whole lot of acknowledgement or acceptance
Speaker 2: of the notion that maybe another branch of government has
Speaker 2: a legitimate concern.
Speaker 1: John Roberts has always been very protective of the Court's reputation,
Speaker 1: and he's pushed back against charges that the Court is political.
Speaker 1: You would think that, because the justices are the final
Speaker 1: arbiters of constitutional questions, these very weighty matters that come
Speaker 1: before it, that Roberts himself would want to make sure
Speaker 1: that there was no even appearance of something wrong. We
Speaker 1: were talking about the case of his wife, talking about
Speaker 1: Neil Gorsisch, and these are very kind of gray areas.
Speaker 1: Is that they wouldn't want any sort of those questions,
Speaker 1: that they would be beyond approach.
Speaker 2: Well, let me try to be generous towards the Chief
Speaker 2: Justice and say, undoubtedly he's in a very tough spot.
Speaker 2: Whatever he thinks about what Clarence Thomas is doing, he
Speaker 2: really only has two choices. He can defend Clarence Thomas.
Speaker 2: He can come out and criticize him. I guess a
Speaker 2: third choice, he can do what he's doing, which is
Speaker 2: essentially nothing. But neither of those first two choices work
Speaker 2: very well for him. I mean, if he's going to
Speaker 2: come out basically at war with Clarence Thomas publicly, A,
Speaker 2: that's not necessarily going to make the judiciary look any better,
Speaker 2: and B he is potentially really alienating an important colleague.
Speaker 2: And if he defends Clarence Thomas, well, A, he may
Speaker 2: not believe that, and B that probably only makes the
Speaker 2: court look worse.
Speaker 1: He's not doing anything.
Speaker 2: So, you know, the Chief Justice, we call him the
Speaker 2: chief but he's not the boss of the other justices.
Speaker 2: He has a few special roles. He gets the bigger office,
Speaker 2: he's got a couple of ceremonial and maybe he slightly
Speaker 2: not ceremonial roles, but he doesn't have the authority to
Speaker 2: impose something on his own. Now, it's not always crystal
Speaker 2: clear what the chief can do in his own and
Speaker 2: what the Court as a whole has to do.
Speaker 1: I took that.
Speaker 2: Statement that they issued as essentially the best that Roberts
Speaker 2: was able to produce. He got a statement that nine
Speaker 2: of them signed saying, we take ethics very seriously. Here's
Speaker 2: what we do. He may well have wished he could
Speaker 2: get them all to agree to a code of conduct
Speaker 2: in some binding mechanism. The question for him was would
Speaker 2: he want to do that if it wasn't unanimous among
Speaker 2: the justices and if one justice said, you know, I
Speaker 2: disagree with that and I'm not going to follow it.
Speaker 2: Roberts doesn't have a clear way to make that justice
Speaker 2: follow any code of conduct.
Speaker 1: But Greg, would Roberts have to criticize Clarence Thomas or
Speaker 1: other colleagues. Couldn't he have just said, as the Supreme Court,
Speaker 1: we have to be beyond reproach, and so what we're
Speaker 1: going to do is say that we'll follow the same
Speaker 1: ethical guideline that other federal judges have to follow, just
Speaker 1: to make sure that there aren't any of these kinds
Speaker 1: of questions about us.
Speaker 2: So he certainly could have said that. And the word
Speaker 2: I would focus on is the we. When he says
Speaker 2: we are going to do that, does Clarence Thomas agree
Speaker 2: to do that? And if Clarence Thomas doesn't agree to
Speaker 2: do that, what does John Roberts do? It's not all
Speaker 2: that clear. And you know, maybe if he is skillful
Speaker 2: in his relations with his colleagues, maybe he can thread
Speaker 2: that needle. But of course, at the same time he's
Speaker 2: negotiating with them over you know, big cases on firmative action,
Speaker 2: student loans, et cetera, et cetera, et cetera. You know,
Speaker 2: there are a lot of things, a lot of dynamic
Speaker 2: is going on within the Court, and it may be
Speaker 2: that this was just, you know, one consensus that Roberts
Speaker 2: just couldn't build.
Speaker 1: After the break, will Congress step in to impose rules
Speaker 1: on the Supreme Court? Greg As you've said, the Court
Speaker 1: is pushing back against the idea that they should change
Speaker 1: their ethics reporting rules. Do you think that there's any
Speaker 1: chance that Congress will now step in and try and
Speaker 1: do what the Court won't do itself.
Speaker 2: It's hard to imagine Congress will do much in this
Speaker 2: current environment. The current environment being we have a divided
Speaker 2: Congress with Republicans in control of the House, and we
Speaker 2: saw at the recent Senate hearing about these very issues,
Speaker 2: these Supreme Court ethical issues, a lot of Republican pushback
Speaker 2: on the idea that anything at all needed to be done.
Speaker 6: So we can talk about ethics, and that's great, but
Speaker 6: we're also going to talk about today of a concentrated
Speaker 6: effort by the left to delegitimize this court and to
Speaker 6: cherry pick examples to make a point.
Speaker 2: So never say never. We don't know what next story
Speaker 2: might come out and what might change the dynamic. But
Speaker 2: as of right now, the way this is playing out
Speaker 2: in Congress is basically a partisan fight, and with Congress divided,
Speaker 2: it's hard to say see what emerges from it.
Speaker 1: Do you think that these questions being raised about the
Speaker 1: justices themselves, especially in this very political environment, does harm
Speaker 1: to the reputation of the court, that it lowers the
Speaker 1: faith of Americans in the Supreme Court.
Speaker 2: It's hard to see how it doesn't. I mean, certainly
Speaker 2: you look at public opinion polls and you're seeing it.
Speaker 2: The numbers are way down, and this all, of course,
Speaker 2: happens against the backdrop of a court that has become
Speaker 2: much more conservative through Republicans pushing really hard to get
Speaker 2: their nominees confirmed and keep Democratic nominees from being confirmed,
Speaker 2: or at least keeping one Democratic nominee from being confirmed,
Speaker 2: and major decisions, especially the one overturning review Waid and
Speaker 2: the constitutional right to abortion. And so you had this
Speaker 2: sort of pre existing unhappiness with the Coordinates direction among
Speaker 2: a very large segment of the country, and this just
Speaker 2: adds to that.
Speaker 1: And do you think there's any political pressure that would
Speaker 1: lead Clarence Thomas to step down?
Speaker 2: I can not see it, Wes. I mean, you know,
Speaker 2: I was talking to some colleagues about this. You know,
Speaker 2: if we think about like what made Richard Nixon resign,
Speaker 2: what made Abe Fortis, who was a justice when Richard
Speaker 2: Nixon was president, both of those happened when that person
Speaker 2: lost support among members of their own party. Richard Nixon
Speaker 2: resigned in large part because the Barry Goldwaters of the
Speaker 2: world said, mister President, you need to resign. At this point,
Speaker 2: Clarence Thomas has not lost any significant chunk of the
Speaker 2: support he has among Republican members of Congress. And conservatives
Speaker 2: across the country. So until that happens, it's hard to
Speaker 2: see how there's any sort of critical mass of pressure
Speaker 2: that would cause him to think about stepping down. And
Speaker 2: I haven't even mentioned the fact that if he does
Speaker 2: step down, we have a democratic president and a Democratic Senate,
Speaker 2: and that's going to shift the Supreme Court.
Speaker 1: Greg always great talking with you, Thanks for coming on
Speaker 1: the show. My pleasure. Now let's hear from someone who
Speaker 1: has closely studied these questions. Stephen Lubitt is an emeritus
Speaker 1: professor of law at Northwestern University. He's written for years
Speaker 1: about judicial ethics, including the Court's current situation. Steve, I
Speaker 1: think for a lot of people who are seeing what's
Speaker 1: happening now with the Supreme Court, the question is why
Speaker 1: don't Supreme Court justice is who you would think would
Speaker 1: want to be beyond reproach, don't follow the same ethics
Speaker 1: guidelines that every other federal judge in the nation has
Speaker 1: to follow.
Speaker 4: They would claim they follow the same guidelines, they just
Speaker 4: haven't formalized it into a code, which I think is
Speaker 4: sort of silly. The reason they don't have a code
Speaker 4: is just because they don't want to. You know, they're
Speaker 4: the Supreme Court, they get to decide, and they've made
Speaker 4: this decision and they're sticking to it. In nineteen seventy two,
Speaker 4: the American Bar Association published what they called the Model
Speaker 4: Code of Judicial Conduct, setting mandatory standards for judicial conduct
Speaker 4: that they hoped would be adopted across the board by
Speaker 4: American judges. And one of the very first early adopters
Speaker 4: was the Judicial Conference of the United States, which sets
Speaker 4: the policy for all of the lower courts, except, of course,
Speaker 4: the Supreme Court. And since that time, every other court
Speaker 4: in the US state and federal they have all adopted
Speaker 4: some version of the Code of Judicial Conduct. And the
Speaker 4: only holdout is the US Supreme Court. And why they've
Speaker 4: held out they've never actually explained, except they don't want to.
Speaker 4: Being the Supreme Court creates a lot of discretion, and
Speaker 4: so the Constitution doesn't say anything about the requirements for
Speaker 4: justices when it comes to ethics. The Constitution is really
Speaker 4: extraordinarily silent about the Supreme Court. It says there will
Speaker 4: be one Supreme Court, the justices will have life tenure,
Speaker 4: and that their compensation cannot be diminished while they're in office,
Speaker 4: and that's it. That's in Article three you look at
Speaker 4: Article one, which sets up Congress, and it says very specifically,
Speaker 4: each House, Senate, and House will create their own rules
Speaker 4: of procedure and those rules are not reviewable by a
Speaker 4: court because they're committed by the Constitution to each House
Speaker 4: of Congress. The difference is for the Supreme Court, it
Speaker 4: doesn't even exist until Congress creates it, and Congress right
Speaker 4: from the beginning from the Judiciary Act of seventeen eighty
Speaker 4: nine sets the size of the Supreme Court the term
Speaker 4: when it meets the compensation. So, if you're not a
Speaker 4: Supreme Court justice, it's pretty obvious under the Constitution that
Speaker 4: Congress could create a code or require a code from
Speaker 4: the Supreme Court.
Speaker 1: But then again, they're the court. How does it work
Speaker 1: now if you're a Supreme Court justice and there is
Speaker 1: a question about either ethics involving money, or even whether
Speaker 1: a justice should recuse from a case who ultimately decides.
Speaker 4: There is a federal statute that governs disqualification and recusal.
Speaker 4: It's basically the same provisions as in the Code of
Speaker 4: Judicial Conduct. Now, the Supreme Court has never actually conceded
Speaker 4: that they have to follow that statute, but they pretty
Speaker 4: much have or at least they've said that they pretty
Speaker 4: much have. But they have adopted a process in which
Speaker 4: each justice decides alone and unreviewably on their own disqualification,
Speaker 4: so the whole court never sees it, never gets to
Speaker 4: rule on it. This makes them, again, the only judges
Speaker 4: in the US who have unlimited discretion to decide whether
Speaker 4: they're disqualified in a particular case. Just this month, all
Speaker 4: nine justices issued a statement in which they said that
Speaker 4: a justice may, when announcing recusal, give a reference to
Speaker 4: the Relevance Section of the Code of Judicial Conduct. That's
Speaker 4: what they said. Do you know how many times they
Speaker 4: have actually done that? You probably do. The answer is zero.
Speaker 4: They have never done it. So maybe they were making
Speaker 4: the statement going forward that in the future they would
Speaker 4: do it, except that four days later Justice Jackson recused
Speaker 4: herself from a case and gave no explanation, no reference
Speaker 4: to the Code. So how sincere they are about this
Speaker 4: reform is anybody's guests.
Speaker 1: But if there say is a clear conflict of interest
Speaker 1: that a justice may have with a case appearing before
Speaker 1: the court, and that justice just does not recuse him
Speaker 1: or herself, is there any recourse or is it just
Speaker 1: their decision? And after that nothing can be done.
Speaker 4: There is no recourse, it's their decision. After that, nothing
Speaker 4: can be done. Well, you could have impeachment. I suppose
Speaker 4: sort of impeachment. Nothing can be done.
Speaker 1: So what is the solution here if we talk about
Speaker 1: that when we come back, Steve, you mentioned earlier that
Speaker 1: Congress does have an oversight role. What can Congress do
Speaker 1: to impose certain accountability on the Court if the Court
Speaker 1: won't do it itself.
Speaker 4: Well, I think Congress has an oversight role. Congress probably
Speaker 4: thinks they have an oversight role. It's not obvious that
Speaker 4: the Supreme Court is going to grant that or agree
Speaker 4: with that if there is ultimately legislation. But I think
Speaker 4: that Congress could either require the Court to adopt its
Speaker 4: own code, which seems to me to be the most
Speaker 4: sort of compromise solution. The Congress isn't going to dictate
Speaker 4: what the code needs to be. If the Justices think
Speaker 4: they have particular to write it one way or another,
Speaker 4: then they could go ahead and do that. Or Congress
Speaker 4: could create a code. And just as there are financial
Speaker 4: reporting requirements and disclosure requirements under statutes, there could be
Speaker 4: a statute that actually imposes a code I don't think
Speaker 4: there would be much inclination in Congress to do that,
Speaker 4: but I think that's a possibility. And a third possibility
Speaker 4: would be to require the full Court to rule on
Speaker 4: disqualification motions now that one is clearly within congressional authority.
Speaker 4: Instead of each justice deciding by themselves whether or not
Speaker 4: they're disqualified, the motion would be referred to the entire.
Speaker 1: Court when it comes to recusal from cases where justice
Speaker 1: might have a conflict of interest.
Speaker 4: Yeah, exactly. So disqualification is the term that's used in
Speaker 4: the statutes, recusal, it means the same thing. Now that's
Speaker 4: clearly within I think the authority of Congress, because Congress,
Speaker 4: right in the Constitution, can set the jurisdiction of the
Speaker 4: Supreme Court besides what's within and not within Supreme Court
Speaker 4: jurisdiction except for a very narrow band of cases. So
Speaker 4: saying how particular motions are to be handled, I think
Speaker 4: is something Congress could do.
Speaker 1: You said earlier that you aren't sure that the Supreme
Speaker 1: Court would accept Congress's authority, and I think we saw
Speaker 1: a bit of that when Chief Justice Robert sent a
Speaker 1: rather forceful letter to the Chairman of the Senate Judiciary
Speaker 1: Committee saying he wouldn't testify and then saying why he
Speaker 1: wouldn't appear. You've written critically about that.
Speaker 4: Right, I thought the Chief was not being straightforward when
Speaker 4: he said that. He said that only twice had chief
Speaker 4: Justices ever testified. But you know those are precedents, and
Speaker 4: the Senate invitation was actually for the chief or a
Speaker 4: designated associate justice to testify, and Chief Justice Roberts just
Speaker 4: blew right past that Associate Justices have testified almost two
Speaker 4: hundred times in the last sixty years, more than once
Speaker 4: a year, So there's no reason that someone couldn't have
Speaker 4: been there.
Speaker 1: So you've written about judicial ethics for years, you taught it.
Speaker 1: If you were able to say this is what we
Speaker 1: ought to do, what would it be, Well.
Speaker 4: It would be what Senator Tillis said at the recent
Speaker 4: hearing Tom Tellus, Republican from North Carolina. He said, I
Speaker 4: hope the Supreme Court is watching this hearing, and I
Speaker 4: hope they'll take it to heart, and I hope they
Speaker 4: will adopt a code of conduct. Now, I would add
Speaker 4: to that, I hope they would figure out a way
Speaker 4: to make full court rulings on disqualification motions because that
Speaker 4: would give much greater credibility, create much greater public confidence.
Speaker 1: Do you think that given the public attention and political
Speaker 1: pressure on the court that we're seeing now, will actually
Speaker 1: force their hand and that they will adopt some different standard.
Speaker 4: I think if they wanted to change, they would have
Speaker 4: done it already.
Speaker 1: Professor Steven Lubitt, Thanks so much for talking with me.
Speaker 4: It's been a great pleasure, Wes anytime.
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