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Understanding the ethics rules that Supreme Court justices have to follow


The revelations keep coming about Supreme Court Justice Clarence Thomas. Last Thursday, ProPublica reported that Thomas received and failed to disclose a gift from a GOP megadonor. The report says billionaire Harlan Crow paid the private school tuition for Thomas's grandnephew - tuition that runs more than $6,000 a month. ProPublica has reported before about Crow's other gifts to Thomas over the years including luxury vacations and real estate. To better understand the rules surrounding income and gifts to Supreme Court justices, we're joined by Gabe Roth. He's executive director of the nonprofit group Fix the Court. Welcome to the program.

GABE ROTH: Thanks so much for having me, Ayesha.

RASCOE: So let's start with Justice Thomas and the tuition gift. Is this sort of gift allowed for Supreme Court justices?

ROTH: So it is allowed, but what's not allowed is the lack of reporting. So defenders of Thomas say that because this gift was to his grandnephew and his grandnephew was not technically his dependent child, as it's defined in federal law, that it didn't need to be reported all those years ago. Fact of the matter is that this was a gift to Thomas. And there is a section of your financial disclosure report, and you're supposed to include any gifts that you receive from any source that's greater than around $400. And obviously, about $100,000 worth of tuition is more than $400, so it needed to be reported in the annual disclosures.

RASCOE: And so for those listening, this grandnephew was in the care of Justice Thomas at the time. Is that what is being implicated here?

ROTH: Yes. Thomas was the legal guardian of Mark Martin. That's his name. He's around 30 now. But Mark was never officially his adopted son or adopted by him. So it doesn't matter who Mark was or is. It matters that Thomas received a six-figure gift that went unreported.

RASCOE: Are there rules around who can give gifts to Supreme Court justices?

ROTH: There are, but they're pretty flexible. So in general, Supreme Court justices under law should not be soliciting any gifts from anyone - especially if they have business before the courts. But rules often - like these are only as strong as they're going to be enforced. And, you know, I can't think of a single time where a Supreme Court justice has been fined under the law for accepting an improper gift.

RASCOE: What about the income of Supreme Court justices? So they get a federal salary, and then, like, what are the other ways that they can supplement that income illegally?

ROTH: So justices are permitted to teach with various law schools, and they can make up to about $32,000 a year on top of their roughly $275,000 salaries. And they can write books. Some of them have had very lucrative book contracts. And then they can own various investments whether that be additional property - so, like, rental income, or stocks, bonds, mutual funds, ETFs. And also, spousal income is allowed, of course, as well.

RASCOE: So what mechanisms are there to enforce these rules?

ROTH: So the mechanisms are not great. There's impeachment and removal, which has never happened with a Supreme Court justice in U.S. history. And then under the federal financial disclosure rule, there is this ability where the judicial branch's policymaking body would send a recommendation to the attorney general, and then the attorney general could fine a justice $50,000 per violation, but that also has never happened. So right now, there is very little that can be done to a justice other than feel the wrath of public shame.

RASCOE: So your organization is called Fix the Court, and that means you think it needs to be fixed. So if you had a magic wand, where would you start?

ROTH: Term limits. I would start with - by ending life tenure for the justices on the Supreme Court. I think that future justices should serve only 18 years. So every president would have two picks per term. You'd have a new justice every two years. Two times nine is 18. And you would not be imbuing these nine fallible human vessels with unchecked power for 35 or 40 years, as is the case now. In sort of the more, you know, things that might happen in the next few years type realm, I think you would want the justices of the Supreme Court to have the same strict reporting and acceptance requirements on gifts, travel, personal hospitality, that members of the House and Senate have to follow and requiring them to divest from all individual stock and have Congress create stricter laws about conflicts of interest and recusal so we know when the justices are recusing, why they're recusing, and they're more forthcoming about their conflicts real and perceived. The theory is that if we're going to have this institution that is the most powerful in our government, then they shouldn't also have the least accountability - that they should have some basic ethics guidelines and strictures that they are required to follow and that they're really setting the tone for moral leadership in this country and aren't just floating at the bottom.

RASCOE: That's Gabe Roth. He is executive director of Fix the Court. Thank you so much for joining us.

ROTH: Thanks for having me.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.

Ayesha Rascoe is a White House correspondent for NPR. She is currently covering her third presidential administration. Rascoe's White House coverage has included a number of high profile foreign trips, including President Trump's 2019 summit with North Korean leader Kim Jong Un in Hanoi, Vietnam, and President Obama's final NATO summit in Warsaw, Poland in 2016. As a part of the White House team, she's also a regular on the NPR Politics Podcast.