Supreme Court Justice Clarence Thomas became the subject of controversy after ProPublica reported he accepted hundreds of thousands of dollars worth of gifts – largely in the form of vacations and travel – from a wealthy conservative donor and did not disclose them.
There are laws against federal employees, including members of Congress, accepting certain gifts. Several VERIFY viewers, including Peggy, asked whether those laws also apply to Supreme Court justices.
Are Supreme Court justices allowed to accept gifts?
- 5 USC 7353
- Judicial Conference of the United States
- Chief Justice John Roberts, 2011 year-end report
- U.S. Constitution
Federal law prohibits “officers of the judicial branch” from accepting gifts from people whom they could use their job to benefit. But the law leaves decisions about what gifts qualify, as well as enforcement and penalties, up to the ethics office of each government agency.
The Supreme Court doesn’t have an ethics office, meaning there’s no binding set of rules for justices to follow like there is for agency employees or members of Congress.
WHAT WE FOUND
Federal law prohibits any federal workers – including judges and members of Congress – from taking gifts from anyone who could benefit from their position.
5 USC 7353 says “no Member of Congress or officer or employee of the executive, legislative, or judicial branch shall solicit or accept anything of value from a person whose interests may be substantially affected by the performance or nonperformance of the individual’s official duties.”
Supreme Court justices are considered judicial officers.
The law says there can be exceptions, but leaves it up to “each supervising ethics office” to determine what those should be.
For instance, the gift policy of the Department of Justice is determined by the Departmental Ethics Office. The policy for the U.S. Senate is written by the U.S. Senate Select Committee on Ethics. Federal judges follow the policy determined by the Judicial Conference of the United States.
Supreme Court justices have said they generally aim to abide by the ethics regulations of the Judicial Conference. Chief Justice John Roberts wrote in 2011, “All Members of the Court do in fact consult the Code of Conduct in assessing their ethical obligations.”
But the Judicial Conference has no actual authority over the Supreme Court, and its gift policy specifically states it does not cover justices or employees of that court.
In the same report, Roberts wrote, “Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body,” including the Supreme Court.
In fact, the Supreme Court has no ethics office or ethics code at all, a longstanding subject of controversy. That leaves no structural way to enforce the federal gift law when it comes to violations by Supreme Court justices.
Crucially, the federal gift law does not list any punishment for breaking it, other than “appropriate disciplinary and other remedial action in accordance with any applicable laws, Executive orders, and rules or regulations.”
In other words, federal agency employees could be fired. Members of Congress could face investigation by their ethics committee. Lower-court judges could be investigated via their circuit’s complaint system. But there’s no one to discipline the Supreme Court.
The only legal mechanism to punish a justice for an ethics violation is impeachment by Congress.
The Constitution says, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
That means just as it can the president, the legislative branch can remove Supreme Court justices. However, like with the president, a majority vote in the House is required to impeach and a two-thirds majority in the Senate is required to convict and remove the person from office.
One justice – Samuel Chase – was impeached in 1805, but there weren’t enough votes in the Senate to remove him from office.
Some Democrats have called for Justice Thomas to be impeached, but given the Republican majority in the House that’s unlikely to happen.
Justice Thomas is not only being criticized for accepting the gifts, but also for failing to disclose them.
A separate federal law requires federal employees and elected officials to file disclosure reports that include information about gifts received. The law explicitly states that it covers Supreme Court justices.
As with the gift law, the disclosure law leaves administering these requirements up to ethics offices, specifically mentioning the Judicial Conference as the body responsible for overseeing judges.
As with the gift law, the Judicial Conference has a detailed set of regulations judges are supposed to follow. There’s debate about how closely Thomas followed these regulations; he’s claimed that he followed an older, less strict version and will follow the more strict version in the future.
But as with the gift law, there’s also debate about how closely Supreme Court justices actually have to abide by those regulations, since the Judicial Conference is presided over by the Chief Justice and its authority is over the lower courts.
Unlike the gift law, however, the disclosure law provides a specific set of penalties for violating it, one that does not depend on the existence of an ethics office.
“The Attorney General may bring a civil action in any appropriate United States district court against any individual who knowingly and willfully falsifies or who knowingly and willfully fails to file or report any information that such individual is required to report,” the law states. “The court in which such action is brought may assess against such individual a civil penalty in any amount, not to exceed $50,000.”
That means, the Department of Justice could attempt to pursue fines against Justice Thomas if they find he failed to disclose gifts as required.
However, Attorney General Merrick Garland has given no indication he will seek such penalties.