What to know about the Supreme Court and ethical concerns

New reporting from ProPublica has revealed another example of undisclosed expenses that Supreme Court Justice Clarence Thomas received from a wealthy Republican donor.

That investigation — which involves tuition payments that GOP donor, Harlan Crow, made to cover Thomas’ grandnephew’s private boarding school costs — is one of a number of recent examples that spotlight some justices’ lack of disclosure of high-cost gifts, expenses and deals. This growing list is causing some to question court ethics and credibility. This latest ProPublica report came just two days after a Senate Judiciary Committee hearing — spurred by ProPublica’s prior reporting — focused on the court’s ethics and the need for a Supreme Court code of conduct.

Though the court declined to testify at that hearing, it has defended itself, arguing its members voluntarily follow the code of conduct used to supervise lower courts.

Here’s a roundup of the recent reports about the justices’ financial entanglements and disclosures.

What the reports and investigations say

Thomas and vacations: On April 6, ProPublica first reported that Justice Clarence Thomas failed to disclose more than 20 years of luxury vacations and trips paid for him and his wife by his close friend, billionaire and Republican donor Harlan Crow. Among the highlights of the report:

• Thomas and his wife, Ginni, took a trip to Indonesia on Crow’s private jet in June 2019, where they spent nine days island-hopping on the billionaire’s private yacht. The trip is estimated to have cost over $500,000.
• Summer trips at Crow’s private resort in the Adirondacks, where the Thomas’ mingled with corporate leaders and conservative activists.
• Private flights on Crow’s private jet to attend events across the country, including the unveiling of a statue of Thomas’s eighth grade teacher in New York, paid for by Crow.

Thomas and his mother’s house. One week later, additional deals between the two men were revealed, again by ProPublica, which found that in 2014, Crow bought a single-story home, along with two adjacent lots, in Savannah, Ga., belonging to Thomas and his family.

The report found:

• Crow bought the home for $133,363, ProPublica reported, which was occupied by Thomas’s elderly mother. (The now-94-year-old continued to live in that home through at least 2020, the report says.)
• Tens of thousands of dollars were put into home improvements, including a carport renovation, roof repairs, new fence and gates and more.
• A federal disclosure law passed after Watergate requires disclosure of real estate deals over $1,000, which Thomas appears to have violated, the report says.

Thomas and boarding school tuition. On Thursday, ProPublica reported that Crow paid private school tuition for Thomas’s grandnephew, whom the justice had legal custody over. Crow also paid for tuition at a second school as well, ProPublica reported. Thomas did not respond to the report, but after it was published, his friend, Mark Paoletta, and lawyer to Thomas’ wife, acknowledged the payments on Twitter, saying Crow paid for one year at each. He did not give a total amount but, ProPublica says that based on the tuition rates at the time, the two years would amount to roughly $100,000. In the statement, Paoletta said Thomas did not have to report the payments because the boy was not a “dependent child” as defined in the disclosure law.

Crow’s office said in a statement to ProPublica that Crow and his wife have supported children pursuing education.

“Harlan Crow has long been passionate about the importance of quality education and giving back to those less fortunate, especially at-risk youth,” the statement reads. “It’s disappointing that those with partisan political interests would try to turn helping at-risk youth with tuition assistance into something nefarious or political.”

Gorsuch and Colorado property. On April 25, Politico reported that Justice Neil Gorsuch sold a 40-acre property he co-owned in Granby, Colo., to Brian Duffy, the CEO of Greenberg Traurig, one of America’s largest law firms, which has since had 22 cases come before the court. Gorsuch reported the transaction but not the buyer’s identity. According to the story, Duffy, whom Politico notes has been primarily a Democratic donor, though he’s given to both parties, says he is neither a friend nor a confidant of Gorsuch.

Justice Roberts’ wife made millions as recruiter. When Roberts was confirmed as a Supreme Court justice in 2005, his wife, Jane, stepped down from her work as a lawyer and became a legal recruiter, Business Insider reported last week. She made more than $10 million in commissions from top law firms who practice before the Supreme Court.

And on Sunday, The New York Times devoted a two-page spread to an account of how the Antonin Scalia School of Law at George Mason University lured four conservative justices — Gorsuch, Thomas, Brett Kavanaugh and Amy Coney Barrett — to teach at the Northern Virginia campus and during summers at European tourist meccas, for which they were all paid.

What the justices and the court say

Thomas said in a statement that he didn’t disclose his trips with Crow because he was told that type of “personal hospitality” from a close personal friend didn’t need to be reported.

“I have endeavored to follow that counsel throughout my tenure, and have always sought to comply with the disclosure guidelines,” he said in his statement.

In declining an invitation to appear before the Senate Judiciary hearing, Chief Justice John Roberts made clear the justices seek to abide by the code of conduct followed by the lower courts. Justices are supposed to voluntarily disclose, among other things, the justices non-governmental income, investments, gifts, and reimbursements from third parties. “They file the same annual financial disclosure reports as other federal judges,” Roberts’ letter to Durbin says.

Until March, the rules had an exception for private travel and hospitality paid for by a personal friend who had no cases currently pending before the court. Thomas has said he’ll comply with those new rules.

Roberts said he would not appear at the hearing because such testimony by chief justices “exceedingly rare.”

“Testimony before the Senate Judiciary Committee by the Chief Justice of the United States is exceedingly rare, as one might expect in light of the separation of powers concerns and the importance of preserving judicial independence,” Roberts wrote.

What ethics experts and Congress say

Durbin said ethics reform for the court will happen with or without the justices’ participation. “The highest court in the land shouldn’t have the lowest ethical standards,” Durbin argued during Tuesday’s hearing.

Senate Democrats believe a code of conduct is needed to better outline what behaviors are unacceptable for the court, for Congress and for the people. A recent NPR/PBS NewsHour/Marist poll found that 62% of those polled have little to no confidence in the Supreme Court, the findings typically aligning with political party. (It’s an historic lack of trust — after unpopular decisions in the last couple of years, particularly on abortion rights, according to NPR Senior Political Editor/Correspondent Domenico Montanaro’s reporting on the poll.)

The hearing made clear a code of conduct will not be a bipartisan congressional effort, as a partisan divide drove Tuesday’s meeting.

Durbin said Roberts has the power to restore some of the damage that has been done by the alleged ethical concerns.

“He alone has the authority and the power to change the ethical standards of the court,” Durbin told NPR. “This constant drip of articles about the justices and their conduct — and certainly Justice Thomas — should be fair warning to Chief Justice Roberts that the integrity of the court is at stake with this issue.”

And Republicans accused Democrats of casting doubt on the court because it hasn’t been ruling in their favor.

Republican Sen. John Kennedy of Louisiana said it was “an excuse to sling more mud at an institution that some – not all – some Democrats don’t like because they can’t control it 100% of the time.” He added:”Until they get the outcome they want in every case I fear they are going to continue to slander it in an effort to take control of it. And I pray to God I am wrong.”

While some at Tuesday’s hearing said Congress is powerless to act on a code of ethics, witness Amanda Frost, a University of Virginia law professor, disagreed, invoking the views of the Founders.

“For over 230 years, and for as long as the Supreme Court has existed, Congress has regulated vital aspects of its operation, including its ethical obligations,” she said.

Jeremy Fogel, a former federal judge who served as chairman of the financial disclosure committee of the U.S. Judicial Conference, indicated a need for the court to have some internal mechanism for checking ethical obligations. Ethical questions in the current system, he said, are “kind of a black box.”

— Claudia Grisales and Nina Totenberg contributed to this story.