The Washington PostDemocracy Dies in Darkness

Opinion The Supreme Court has lost its ethical compass. Can it find one fast?

Justice Neil M. Gorsuch chats with Justice Elena Kagan at an event in Arlington in October 2018. Alongside Kagan are Justice Samuel A. Alito Jr. and his wife, Martha-Ann. (Katherine Frey/The Washington Post)

The Supreme Court must get its ethics act together, and Chief Justice John G. Roberts Jr. needs to take the lead. After a string of embarrassments, the justices should finally subject themselves to the kind of rules that govern other federal judges and establish a standard for when to step aside from cases — one that is more stringent than simply leaving it up to the individual justice to decide.

Recent episodes are alarming and underscore the need for quick action to help restore confidence in the institution.

Last week, the Supreme Court wisely rebuffed an effort by Arizona GOP chair Kelli Ward to prevent the House Jan. 6 committee — the party in this casefrom obtaining her phone records. The court’s brief order noted that Justice Clarence Thomas, along with Justice Samuel A. Alito Jr., would have sided with Ward.

Thomas’s involvement, though it didn’t affect the outcome of the dispute, is nothing short of outrageous. Federal law already requires judges, including Supreme Court justices, to step aside from involvement in any case in which their impartiality “might reasonably be questioned.”

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Perhaps back in January, when he was the only justice to disagree when the court refused to grant former president Donald Trump’s bid to stop his records from being turned over to the Jan. 6 committee, Thomas didn’t realize the extent of his wife’s involvement with disputing the election results. (I’m being kind here: Ginni Thomas had signed a letter the previous month calling on House Republicans to expel Reps. Liz Cheney of Wyoming and Adam Kinzinger of Illinois from the House Republican Conference for participating in an “overtly partisan political persecution.”)

But here’s what we know now, and Justice Thomas does, too: The Jan 6. committee has subpoenaed and interviewed his wife. We — and he — know that she contacted 29 Arizona lawmakers, urging them to “fight back against fraud” and choose a “clean slate of electors” after the 2020 election.

Some recusal questions are close. Not this one. Did the chief justice urge Thomas to recuse? He should have. This will sound unthinkable, but if Roberts asked and Thomas refused, maybe it’s time for the chief, or other justices, to publicly note their disagreement.

More than a decade ago, in his 2011 year-end report on the state of the judiciary, Roberts declared his “complete confidence in the capability of my colleagues to determine when recusal is warranted.” If he still thinks that, he is deluding himself.

Thomas’s poor ethical antennae are not the chief justice’s only headache. Roberts was still dealing with the aftermath of the unprecedented leak of a draft opinion in last term’s abortion ruling when the New York Times reported on Saturday that the former head of a conservative lobbying group warned Roberts in a July letter that he had obtained advance information about the outcome of the court’s 2014 ruling in Burwell v. Hobby Lobby, about religious employers and contraceptive coverage.

The letter writer, Rev. Rob Schenck, who headed a D.C.-based nonprofit called Faith and Action, described having been informed weeks in advance that Hobby Lobby would win the case and that Alito was writing the opinion. He said he had been tipped off by an Ohio woman he had recruited to the cause, Gayle Wright, who’d had dinner with the justice and his wife, Martha-Ann, at their Virginia home.

Alito said any suggestion that he or his wife had leaked the information was “completely false,” and Wright denied the account as well. But contemporaneous evidence, including an email from Wright, lent credence to Schenck’s account. “Rob, if you want some interesting news please call. No emails,” she wrote Schenck the day after the dinner.

Politico and Rolling Stone had previously reported on Schenck’s “Operation Higher Court.” The Times’s smarmy details about the operatives’ astonishing access to the justices, even as these same operatives were making six-figure donations to the Supreme Court Historical Society, were chilling. “Lunch with CT on Monday, Sam on Wednesday, dinner at court on Monday, Dinner with Maureen on Wednesday,” Wright wrote in a 2016 email, apparently referring to Thomas, Alito, and Justice Antonin Scalia’s widow, Maureen.

Roberts didn’t deign to acknowledge Schenck’s letter, but this episode can’t be ignored; Sen. Sheldon Whitehouse (D-R.I.) and Rep. Hank Johnson (D-Ga.) are right to press for answers, not just about the leak, but to how the nominally independent historical society may have been used in a pay-to-schmooze influence scheme.

Justices get to have social lives. But they also need to be mindful about their behavior, on and off the bench, and the signals they’re sending, especially when they accept travel and entertainment from those with an interest in the court’s work. Some disclosure is already required, but it’s spotty.

One obvious step is to follow the ethics rules that apply to other federal judges, perhaps adapting them to the particular needs of the high court. That would send an important — and overdue — message that the justices are not a law unto themselves. It’s symbolic, but symbolism matters.

The longer the court delays acting, the more likely it is that Congress will impose rules on it.

Three years ago, Justice Elena Kagan testified before the House that the justices were “studying the question of whether to have a code of judicial conduct that’s applicable only to the United States Supreme Court,” calling it “something that’s being thought very seriously about.” That’s the last we’ve heard from the court on this topic.

Roberts has had a rough 2022. Tackling his court’s ethics problem would be a smart way to finish a bad year on a good note.

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