Supreme Court justices and all federal judges must provide a fuller public accounting of free trips, meals and other gifts they accept from corporations or other organizations, according to revised regulations quietly adopted this month.
Gifts such as an overnight stay at a personal vacation home owned by a friend remain exempt from reporting requirements. But the revised rules require disclosure when judges are treated to stays at commercial properties, such as hotels, ski resorts or corporate hunting lodges. The changes also clarify that judges must report travel by private jet.
The revisions come after years of pressure from members of Congress, who say the judiciary should follow ethics guidelines closer to those that apply to the executive and legislative branches.
The revised rules were adopted by a committee of the Judicial Conference, the courts’ policymaking body. They took effect March 14, according to a letter last week from the Administrative Office of the U.S. Courts replying to questions from Sen. Sheldon Whitehouse (D-R.I.), who has pressed for more transparency as chairman of the Judiciary Committee’s panel overseeing the federal courts.
Federal law mandates that top officials from the three branches of government file annual forms detailing their finances, outside income and spouses’ sources of income, with each branch determining its own reporting standards. Judges are prohibited from accepting gifts from anyone with business before the court. The judicial branch, however, had not clearly defined the exemption for gifts considered “personal hospitality.” The revised rules address that ambiguity.
The personal hospitality exemption is meant to allow officials to accept invitations to travel, dine and stay with friends without having to report it to the public. However, several experts said some members of the judiciary may have taken advantage of that exemption by not reporting free trips paid for by corporations or third parties, some of which might have interests before the courts.
Judge Roslynn R. Mauskopf, director of the administrative office, said judges on the Judicial Conference spent months considering how to better interpret the exemption for personal gifts. The changes were made in part to clarify that the term “personal hospitality” is determined by the nature of the judge’s relationship with the host, according to the letter obtained by The Washington Post.
Whitehouse called the revisions a “little, but real victory.” The new language, he said, closes a loophole that left “open an enormous avenue to real mischief” by allowing “free, secret holidays orchestrated by one of the many interests seeking to influence the court.”
Whitehouse and court transparency advocates pointed to unanswered questions about who paid for hunting trips of the late Supreme Court Justice Antonin Scalia as a prime example of the need for additional disclosure.
In 2004, the Sierra Club requested that Scalia recuse himself from a case involving Vice President Dick Cheney after news reports that Scalia had flown on Air Force Two, the vice-presidential jet, with Cheney and others on a hunting trip to Louisiana. Scalia refused to step out of the case, writing in a 20-page memo that he did not believe his impartiality “can reasonably be questioned,” the legal standard for recusal.
The justice publicly reported taking more than 200 subsidized trips during his last decade on the bench, many of those to lecture at universities or for legal groups including the conservative Federalist Society. Scalia did not report many of his free hunting vacations, according to a review of his financial disclosure forms. For instance, after speaking at Texas Tech University in 2008, Scalia joined a group of lawyers to hunt at a private ranch and made no mention of the excursion on his government form.
In 2016, Scalia was found dead of a heart attack at the West Texas hunting resort Cibolo Creek Ranch after traveling there on a private plane with a prominent Washington attorney, highlighting how little Americans know about the perks justices enjoy and who provides them.
Gabe Roth, executive director of Fix the Court, a court transparency nonprofit, said the new language shows judiciary officials are willing to engage with lawmakers to “restrict the very clear loopholes in the judicial gift and travel reporting rules.”
In general, he said, a judge or justice who has the expenses of a hotel stay covered by a friend should be required to disclose that information. “The new rule appears to require such reporting,” Roth said.
Even so, he said, the travel and gift reporting rules for the judiciary “remain less stringent than the other two branches” and Congress should pass legislation that would impose the same rules followed by lawmakers and executive branch officials.
When members of Congress take free trips, for example, they are required within a few weeks to file a public report listing their travel costs.
In contrast, disclosure forms filed by judges and justices do not include dollar amounts and report free travel and gifts at least six months after the activity occurred.
A spokesperson for the Supreme Court did not respond to a request for comment.
Rules around subsidized trips are not the only questions of ethics at the Supreme Court recently.
Separately, the court has been under pressure to adopt a code of conduct specific to the nine justices. The high court has failed to reach consensus on a policy despite discussion that dates to at least 2019. Last month, leaders of the American Bar Association joined those calling on the court to act, saying that “the absence of a clearly articulated, binding code of ethics for the justices of the Court imperils the legitimacy of the Court.”
The justices are not bound by the code of conduct that covers other U.S. judges. They say they voluntarily comply with the same ethics standards. But scrutiny of the justices has increased with the court’s heightened profile as a new conservative majority has moved quickly to rule on polarizing cases.
The new disclosure rules clarifying what constitutes personal hospitality apply to more than 3,000 judges nationwide, a group that includes senior judges, magistrate judges and Supreme Court justices.
That change would not have been needed at all had the judiciary been following the law the way Congress and the executive branch claimed to be following it, according to Kedric Payne, senior director for ethics at the Campaign Legal Center, an advocacy group.
“We don’t know if the Supreme Court justices are, on their own, interpreting this rule to allow them to hide these gifts,” he said of the exemption.
The judiciary does not have the mechanisms to enforce ethics compliance that are in place within Congress and the executive branch, Payne said. While executive agencies have ethics officers and the House and Senate have ethics committees, the judiciary still largely self-enforces judges’ compliance with the rules, with little disclosure.
“The problem with the Supreme Court is that they have no internal mechanism to look at ethics issues that come up,” Payne said. “Everybody else has this.”