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New revelations raise more questions about Supreme Court ethics

STEVE INSKEEP, HOST:

What is the answer to the continued revelations of a Supreme Court justice taking favors? ProPublica reported that Clarence Thomas accepted far more luxury vacations and gifts than was previously known. He accepted a total of 38 vacations, 26 flights on private jets, VIP passes to sporting events and stays at luxury resorts. Amanda Frost has been following all this. She's a law professor at the University of Virginia who testified before the Senate Judiciary Committee on Supreme Court ethics. Welcome to the program.

AMANDA FROST: Thank you for having me.

INSKEEP: What do these disclosures add, if anything, to your understanding of Justice Thomas and his ethics?

FROST: Yes, well, they are shocking in the sheer number and scope of the gifts and vacations accepted from billionaires, so that's disturbing. But it is true that it's just confirming what we've already known from previous reporting, which is that Justice Thomas and some other justices as well have been accepting luxury trips from billionaires that they're failing to report, as federal law requires, and that it raises the question of whether the justices can police themselves or whether Congress should step in and enact legislation to impose ethical rules on the justices that the lower courts currently follow.

INSKEEP: Let's talk through some parts of this, though. I don't think that anyone has alleged that Justice Thomas was swayed in any particular ruling by these free vacations and other failures. He is the most conservative justice or most right-wing justice, however you want to put it. He's been considered that for a long time. He makes a certain type of opinion, a certain type of ruling. Does that lessen the damage here if no one can point to a specific case that was changed?

FROST: Yeah, so I have sort of two response to that. One is, I think that there's a real psychological effect when someone gives you a gift that might change your approach to a case or an issue that concerns that person that maybe you as a judge don't even realize yourself. So I think there could be an effect. But I guess more important is the fact that it creates the perception that the justices on the Supreme Court can be bought. Access and influence to them can be bought. Even if it's not true that it's swaying their opinions, that's a perception that will undermine the integrity of the court for the American public. And that's a problem.

INSKEEP: You also said that he failed to disclose these favors as required by federal law. I gather that some of the justices have questioned whether the law applies to them. Thomas has said he didn't have to disclose things he failed to disclose. Justice Samuel Alito, who also, by the way, has accepted some free vacations, has said that the Congress has no right to impose ethics controls on the Supreme Court. Are they bound by the law that binds everyone else?

FROST: Yeah, so first, they are bound. The federal statute, the Ethics in Government Act, very clearly applies to the justices, and it very clearly requires disclosure of these gifts of travel. And so the law itself, for any textualist judge, which Alito and Thomas are, should make it clear to them that they have to disclose.

So that's one point. But it's true that Alito recently said in an interview that he didn't think Congress had the power to regulate the court. And in fact, he said he didn't think there was a provision in the Constitution that allowed for that. Well, that's also wrong. Article III of the Constitution actually says that Congress has the power to make regulations governing the court's appellate jurisdiction. And the court has always done so. And Justice Elena Kagan recently very clearly said that as well when she was asked that question. She said, we are not imperial.

INSKEEP: So yes-no question, then, does Congress - if it were to choose, if it were to get over its partisan differences, does Congress have the power to impose an ethics code on the Supreme Court?

FROST: Yes, absolutely.

INSKEEP: Amanda Frost is a law professor at the University of Virginia. Thanks very much for your time.

FROST: Thank you for having me. Transcript provided by NPR, Copyright NPR.

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