By Gabe Roth
Apr 24, 2023, 11:20 AM

In light of recent events, it’s not controversial to suggest that the Justices of the Supreme Court should follow more exacting rules on travel, gifts, and personal hospitality—say, the rules that members of Congress follow.

But, as it turns out, many of the strictures that members of Congress have regarding acceptance of perks are not codified in federal law.  Instead, they are found in the Standing Rules of the Senate and the Rules of the House of Representatives.  The Ethics in Government Act of 1978 and Ethics Reform Act of 1989 authorize subagencies within each branch the authority to “to issue rules or regulations” for the acceptance of travel, gifts and personal hospitality.  Yet—and this is key—while the congressional committees have endeavored to create stringent guidelines and lay out tough punishments, the federal judiciary has done neither.

The judiciary has for years, and for reasons that amount to nothing more profound than “trust us,” shown a clear unwillingness to implement robust regulations.  Exhibit A is the fact that there still is no Code of Conduct for U.S. Supreme Court Justices.  When it comes to travel, and this is where I’d like to put my focus, recall the loophole in the judiciary’s regulations that, under one theory, permitted federal judges and Justices to fly for free on friends’ private planes without reporting it on their annual disclosures, which existed for decades and was only closed in March 2023 leading up to the release of the ProPublica investigation into Justice Thomas’ vacations and gifts.

To put a finer point on the divergence of the rules, and why Congress must legislate, let’s imagine that under the current congressional and judicial rules a member of Congress and a Supreme Court Justice (or lower court judge) were each offered a free three-night stay at a hunting lodge, valued at $1,000 per night, paid for by a nonprofit think-tank.

What would happen to ensure that this gift is above board?

Both the lawmaker and Justice would need to consider whether the think-tank has any ulterior motives in offering the free trip.  If yes, then they must decline it.

But then the processes diverge considerably.  First, a lawmaker would have to file documents with the House or Senate Ethics Committee thirty days prior to the trip, including the original, unsolicited invitation from the travel sponsor and a detailed, hour-by-hour itinerary.  The think-tank would have to file a a Primary Trip Sponsor Form (House) or a Private Sponsors Travel Certification Form (Senate).

Then there’s the screening for conflicts and luxury:  in both the House and Senate, if the sponsor employs or retains a lobbyist or foreign agent, the trip may not exceed one overnight stay, unless a second night is deemed necessary to accomplish the goals of the trip.  Further, a sponsor may provide only coach or business class travel; travel on a private aircraft or chartered plane is generally prohibited.

For a judge or Justice, however, no approval from an ethics body—there is no such ethics body—occurs.  The judge or Justice may participate in think-tank sponsored events for as many days and nights as they like, even if the think-tank employs a lobbyist or foreign agent, or more directly, if the think-tank has an open case before the Court or has signed on to a recent amicus brief.  The Justice may also take a private plane paid for by the think-tank to get to the lodge and extend the trip on the think-tank’s dime.

When it comes to public reporting about the trip, the yawning gaps yawn more loudly.  Within fifteen days of returning from the trip, a representative and the think-tank must each file a post-travel disclosure report.  A senator must file a similar post-travel report within thirty days of their return.  Each of these reports will include the dollar amounts for transportation, lodging, and meals—helping the public evaluate the “perk-iness” of the perks.  Since the trip is valued at greater than the current reporting threshold of $480, the lawmakers must report the trip on their annual financial disclosures and include the dates, names of co-travelers, the destination, and provide information on who paid.  The public will typically have access to travel disclosures of the representatives and senators travel disclosures within a month of their return.

In the judiciary, however, there are no near-contemporaneous post-travel reports.  Currently, the only requirement on a jurist’s annual disclosure is a single line that mentions who paid, the destination, purpose, and dates, without any dollar amounts.  The Justices’ disclosures are released each year in mid-June, yet as of April 2023, only about half of the 2,500 lower court judges’ 2021 disclosures have been made public.  So, if the think-tank trip occurred in, say, the first week of January, it’d be at least seventeen and a half months until the public learns about it, which is far too long a wait for there to be any real accountability were a conflict to emerge.

In short, the congressional rules are exacting but reasonable.  The judiciary’s?  Not so much.

Additionally, the judiciary lacks a strong internal or semi-independent body that can disinterestedly consider a potential ethical violation.  The closest thing might be the federal judiciary’s Committee on Codes of Conduct, which updates the lower courts’ Code and issues advisory opinions but has no real power to punish federal judges for unethical conduct.  Notably, however, the Supreme Court has no such code or committee.  In comparison, the House and Senate Ethics Committees each have the power to censure, require payment of restitution, recommend diminution of a member’s seniority, recommend expulsion, or some combination thereof.  And while executive branch agencies have inspectors general, which are semi-autonomous offices that report on waste, fraud, and abuse and whose periodic reports on such carry serious weight, there is no inspector general in the judiciary.

With the Justices expected to balk and do nothing in the wake of the latest Justice Thomas scandal, the question is whether Congress has the wherewithal to graft its travel rules (and equally exacting gift and personal hospitality rules) onto the third branch via legislation.  Would such rules be constitutional, and would the Justices be asked to hear a case about their constitutionality?  If so, would they strike them down?

Presumably, the answer is yes, such a law would be constitutional.  Two examples are instructive:  first, when federal judges sued in 1979 to try to exempt themselves from a law requiring judicial officers and other top federal officials to file annual financial disclosures, the judges lost their cases and the Supreme Court denied certiorari.  Accordingly, judicial officers have filed annual disclosures for four decades now.  Second, just last year Congress passed a law requiring the judiciary to post judicial officers’ disclosures and reports of their stock transactions, called periodic transaction reports (“PTRs”), in an online database.  The Justices have complied with both the disclosure and the PTR requirements of the law.

Whether or not you believe Justice Thomas did anything wrong in accepting free travel from a real estate magnate, the rules in the third branch are clearly not up to snuff.

Codifying the congressional travel rules for the Justices is the right thing to do, and now is the right time to do it.