Associate Justice Clarence Thomas joins other members of the Supreme...

Associate Justice Clarence Thomas joins other members of the Supreme Court as they pose for a new group portrait, at the Supreme Court building in Washington, Oct. 7, 2022.  Credit: AP/J. Scott Applewhite

The Supreme Court is unique among our governing institutions. It is nondemocratic but its legitimacy rests on the regard of the public.

Marquette University Law School, which polls consistently about the court, found that it now has a 59% disapproval rating, a drop of six percentage points just since January. The survey taken earlier this month was the first since the barrage of news about the court’s ethics centered around the failure of Justice Clarence Thomas to disclose expensive gifts from a wealthy benefactor, Harlan Crow.

Thomas doesn’t deny the revelations, many from ProPublica, that Crow bought the home Thomas’ mother lives in and made improvements to it and paid for the private-school tuition of a relative the justice was raising. Even if no laws were broken, Thomas clearly was uninterested in avoiding the appearance of impropriety. Worse, Chief Justice John Roberts has failed to bring together the other justices to write an ethics code for the court.

When the nation’s founders created the federal judiciary as an independent branch of government, scant specifics were put into the Constitution beyond that the justices shall be appointed by the president and confirmed by the Senate with life terms and a guaranteed salary. The establishment of the remainder of the federal court system was left to Congress, which is why lower court federal judges have rules and guidelines to follow. Congress can’t make Supreme Court justices adhere to them.

The quickest way for the Supreme Court to restore confidence would be for the justices to adopt their own ethics code. Not only would that demonstrate a serious understanding of their ethical obligations, it would give the nation clear guidelines on how to evaluate the justices’ behavior. And the Senate would have a yardstick to measure possible grounds for impeachment.

The Senate Judiciary Committee should require Thomas’s benefactor to answer questions about his largesse and to state under oath whether he had any business before the court that would have created a conflict of interest.

Another benefit of a Supreme Court ethics code would be the ability to ask nominees in confirmation hearings whether they will honor it. To impress upon the justices the urgency for such rules, law schools and professional organizations could formulate a code of conduct for them, as a way to make this insular branch of government understand its credibility is crumbling. The only other path is laborious — amending the Constitution to make it clear that the justices must obey ethics rules or face consequences.

Supreme Court justices have great power and influence. But recent reports about money flowing to them, their spouses and the court’s historical society to gain access to the justices are seriously weakening the court’s legitimacy. Most Americans strongly support financial disclosure requirements.

Judicial independence does not mean justices get to be totally unaccountable.

MEMBERS OF THE EDITORIAL BOARD are experienced journalists who offer reasoned opinions, based on facts, to encourage informed debate about the issues facing our community.


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