The Appearance of Impropriety

A primer on a SCOTUS gone bad

For years there’s been so many jaw-dropping revelations from the Supreme Court (SCOTUS) of not-quite bribery, not-quite corruption, not-quite treason, that they can all blur together. We thought it would be useful to bring them into one place so we can all see the scope of the threat to justice in America… or possibly breathe a sigh of relief if it’s all an over-reaction.

The presumption of innocence is a central to our Justice system. We don’t imprison people unless we prove they’ve committed a specific crime. That’s what keeps today’s Republicans from sending Hunter Biden to the gallows, even if they know deep in their hearts he must have done something illegal. It keeps Donald Trump a free man despite the fact the American public knows (and he gleefully admits) he’s done any number of illegal things. Courts must work that way or we all suffer, but that’s not how anyone makes decisions outside of a courtroom.

In real life we rarely have the time or resources to exhaustively prove anything, so we our only choice is to make our best guess based on available information. In these cases, without proof of impropriety, the appearance of impropriety can be as damaging as the impropriety itself.

Courts, the bastions of evidence, are also the perfect example of how toxic appearance can be. Despite their human fallibility judges must be neutral to all parties and just as importantly, they must be perceived as neutral to all. A judge might be conceivably be neutral despite dallying with corporate lobbyists, but a small businessman fighting corporate invasion would be an idiot to assume so. A judge who goes to KKK picnics might not be a bigot, but a Black person appearing in their court would still be right to worry. The appearance of impropriety is a very rational reason to question the validity of any authority figure or trusted organization.

No court can function (legitimately) if its impartiality is questioned, but despite the fact all courts beneath them have enforceable ethical codes, the Supreme Court decided not to dirty themselves with one. That brings us to where we are today, where almost every judge on the SCOTUS is under an ethical cloud and some are getting drenched by an ethical storm. And not a damn thing’s being done.

The whole barrel’s rotten

If one judge is corrupt then the whole SCOTUS is corrupt. That’s how it works in courts; one bad apple does indeed spoil the whole barrel. Here’s just a few primers on what the SCOTUS gets up to when no one’s looking…

A Non-Exhaustive List of Supreme Court Justice Scandals Since 1991, Susan Rinkunas on Jezebel, May 2023

Yachts, $10m payouts and secret hunting trips: The Supreme Court’s long history of ethics scandals, Josh Marcus in The Independent, May 2023

Five Ethics Scandals Facing Supreme Court Justices and Their Spouses, Khaleda Rahman on Newsweek, May 2023

But not all apples are rotten equally

But looking closer, not all the apples are equally rotten. Some Justices wallow in houses, trips, and gifts while others worry about the same kind of nickel-and-dime gifts regular people worry about on their taxes and expense reports. Here’s a judge-by-judge recap of their individual allegations…

Chief Justice John Roberts

Other than abdicating his responsibility to ensure trust in our nation’s highest court, Justice Roberts has few ethical allegations against him. It seems he’s outsourced his corruption to his wife.

‘What are you afraid of?’ Roberts hounded for refusing to testify about Supreme Court ethics scandals, Brandon Gage on AlterNet, Jul 2023

Whistleblower raises alarm over John Roberts’ wife making $10.3 million in legal commissions: ‘I knew immediately that it was wrong’, Gideon Rubin on RawStory, Apr 2023

Justice Elena Kagan

Justice Kagan seems like one of the few good guys. Her ethical ‘problems’ were presented as a contrast to Judge Alito, where both recused themselves from cases but only Kagan would say why.

Why Alito, Kagan recusal decisions at Supreme Court raised eyebrows, Zach Schonfeld in The Hill, Jun 2023

Kagan worried about ethics of free bagels as Thomas accepted lavish trips from billionaire, Tatyana Tandanpolie on Salon, May 2023

Justice Brett Kavanaugh

He had an ugly, ugly confirmation process but whatever else may be said about him, he hasn’t had any public ethical lapses since putting on the robe.

Federal Panel Of Judges Dismisses All 83 Ethics Complaints Against Brett Kavanaugh, Nina Totenberg on NPR, Dec 2018

Brett Kavanaugh: Supreme Court is ‘government at its finest’, Joan Biskupic on CNN, Jul 2023

Justice Clarence Thomas PLUS bonus Ginni Thomas!

So far, Justice Thomas has been the biggest, most flamboyant source of corruption on the current bench. Since he was first confirmed he’s taken every sort of emolument imaginable. Like Roberts, he chose to share the load with his wife Ginni, who is apparently responsible for the treason end of the family business.

The many ethics scandals of Clarence and Ginni Thomas, briefly explained, Li Zhou on Vox, May 2023

Clarence Thomas: Here Are All The Ethics Scandals Involving The Supreme Court Justice Amid Horatio Alger Revelations, Alison Durkee on Forbes, Jul 2023

Lawyers with supreme court business paid Clarence Thomas aide via Venmo, Stephanie Kirchgaessner in The Guardian, Jul 2023

Clarence and Ginni Thomas’ wedding reception was paid for by another rich ‘friend’, Sarah Burris on RawStory, Jul 2023

‘Clarence Thomas Needs to Resign’: Report Shines More Light on Justice’s Gifts From the Rich, Jake Johnson on Common Dreams, Jul 2023

Clarence Thomas didn’t recuse himself from a 2004 appeal tied to Harlan Crow’s family business, Lauren Steussy on Bloomberg, Apr 2023

Los Angeles Times reported about Justice Thomas’ gifts 20 years ago. After that he stopped disclosing them, David Savage in Los Angeles Times, Apr 2023

The Clarence Thomas Scandal Is About More Than Corruption, Corey Robin on Politico, Apr 2023

‘Corruption’: Thomas Aide Accepted Money From Lawyers Who Have Had Cases Before Supreme Court, Kenny Stancil on Common Dreams, Jul 2023

Where Supreme Court’s Clarence Thomas Ethics Accusations Might Lead, Wheeler and Robinson on Washington Post, Jun 2023

…and your bonus Ginni

Judicial activist directed fees to Clarence Thomas’s wife, urged ‘no mention of Ginni’, Brown, Boburg, and O’Connell in Washington Post, May 2023

Ginni Thomas Under Scrutiny Following Arrest of Michigan Fake Electors, Ewan Palmer on Newsweek, Jul 2023

Justice Amy Coney Barrett

Taking a page from Thomas, Coney-Barrett has made ‘friends’ with and taken ‘gifts’ from Harlan Crow, the same altruistic gentleman who befriended Clarence.

‘Shady and Corrupt’: Add Barrett Real Estate Deal to List of Supreme Court Ethics Scandals, Julia Conley on Common Dreams, Jun 2023

Amy Coney Barrett Faces Scrutiny Over Real Estate Deal With Religious Group, Giulia Carbonaro on Newsweek, Jun 2023

Justice Samuel Alito

Judge Alito struck out on his own and found his own billionaire patron

Justice Samuel Alito Took Luxury Fishing Vacation With GOP Billionaire Who Later Had Cases Before the Court, Elliott, Kaplan, and Mierjeski on ProPublica, Jun 2023

Samuel Alito’s Ethics Defense Is Even Less Persuasive Than His Legal Rulings Supreme Court justice exempts himself from ethics requirements, Jonathan Chait in Intelligencer, Jun 2023

Justice Neil Gorsuch

Neil Gorsuch, son of Reagan’s EPA Director Ann Gorsuch, has some difficult real estate deals.

Law firm head bought Gorsuch-owned property, Heidi Przybyla on Politico, Apr 2023

‘So Blatant’: Gorsuch Failed to Disclose He Sold Home to CEO of Major Law Firm, Brett Wilkins on Common Dreams, Apr 2023

Justice Sonia Sotomayor

Justice Sotomayor seems to put the heavy hand on librarians and schools.

Supreme Court Justice Sotomayor’s staff prodded colleges and libraries to buy her books, Brian Slodysko And Eric Tucker on AP News, Jul 2023

Justice Ketanji Brown-Jackson

As a palette cleanser, we’ll close with Justice Brown-Jackson. This is the worst thing we could find about her.

“Justice Ketanji Brown Jackson accepted a designer dress and jacket valued at $6,580 that she wore for a Vogue photo shoot last year, but she reported that gift on her yearly financial disclosure form released in June. She also disclosed having received a floral arrangement from talk show host and television producer Oprah Winfrey worth $1,200.”

What are some options to fix it?

Real SCOTUS rehabilitation must come from the Justices themselves. Unfortunately, if you read their comments, you’ll see a lot about ‘reassurance’, ‘rebuilding trust’, and ‘changing perception’, but absolutely nothing that would actually do so. The few proposed fixes come from people who throw up their hands and say the fixes are impossible. But here’s what they’re thinking…

Chief Justice Roberts says Supreme Court looking at ethics standards, provides no specifics, Mark Sherman, AP, on PBS.org, May 2023

Statement on Ethics Principles and Practices, SCOTUS, Apr 2023

Supreme Court’s new ethics declaration stops short of concrete action, Josh Gerstein on Politico, Apr 2023

Clarence Thomas and Democratic Fecklessness, Gyauch-Lewis and Aguilar-Rosenthal on Common Dreams, Apr 2023

Why Supreme Court ‘ethics’ legislation would do more harm than good, Jason Willick in Washington Post, Apr 2023

Ethics reform not enough to restore public confidence in partisan Supreme Court, Aziz Huq in Chicago Sun Times, Jul 2023

Alito’s wrongdoing makes a supreme court ethics overhaul an imperative, Margaret Sullivan in The Guardian, Jun 2023

Dismantling the Supreme Court’s ‘misdirection’ about its own ethics, Zachary Wolf on CNN, Apr 2023

Sens. Whitehouse and Blumenthal and Reps. Johnson, Nadler, Quigley, and Cicilline Introduce New Version of Supreme Court Ethics, Recusal, & Transparency Act, Feb 2023

Does the Supreme Court need a code of conduct?, Sutherland and Chakrabarti on WBUR, May 2023

So that’s where we are. Now you can follow along with the news with a better understanding of the issues and a deeper cynicism that it will be fixed anytime soon.