The Supreme Court's deafening silence
Since January, Common Cause has been asking the Supreme Court to respond to questions about Justice Clarence Thomas’ travel, financial disclosures and fundraising activities. We’re also pressing the Court to embrace and enforce ethical standards that already apply to every other federal judge. The Court’s silence has been deafening.
Here’s a timeline of Common Cause’s actions:
January 20. 2011: Following reports that Justices Antonin Scalia and Clarence Thomas were “featured” at secretive political fundraising and strategy sessions hosted by Koch Industries, Common Cause suggests their attendance may violate the ban on political activity by judges in the Code of Conduct for U.S. Judges. Common Cause also asks the Department of Justice to investigate whether Scalia and Thomas should have disqualified themselves from participation in the landmark Citizens United case on campaign finance, citing their attendance at the Koch retreats and the financial interest of Koch Industries and Thomas’ wife in the outcome of the case.
January 21, 2011: Common Cause discloses that Justice Thomas’ annual financial disclosure reports indicate that he failed to report his wife’s sources of income from 2003-2009. Within hours, Thomas amends 21 years worth of reports, which are required by the Ethics in Government Act. Click to see the letter and chart we sent to the Judicial Conference.
January 30, 2011: Common Cause hosts a forum in Rancho Mirage, Calif., outside the Koch Brothers’ annual political strategy session to spotlight Koch Industries’ political power and activism. Common Cause again questions about the apparent past participation of Justices Thomas and Scalia at similar Koch events.
February 15, 2011: Common Cause asks the Supreme Court to clarify statements by a Court spokeswoman that Thomas spoke at a “separate” Federalist Society event and only briefly “dropped by” a Koch retreat in January 2008. According to disclosure forms, Justice Thomas was reimbursed by the Federalist Society for four days of travel and accommodations in Palm Springs, site of the Koch event, on the days the event was scheduled. There is no record of a separate Federalist Society event at that time or place. The court has not responded.
February 28, 2011: Common Cause challenges claims by Justice Thomas that questions about his conduct are aimed at “undermining” the high court. The group sends letters to Thomas and Scalia seeking additional details about their participation in Koch-sponsored events. Neither justice has responded.
March 1, 2011: Common Cause urges quick passage of legislation sponsored by Rep. Chris Murphy, D-CT, to apply the Code of Conduct for U.S. Judges to the Supreme Court. The Code warns lower federal court judges to avoid taking part in fundraising – even for worthy causes – as well as partisan activities and other acts that would cause a reasonable person to question the judge’s impartiality.
April 14, 2011: Testifying before a House subcommittee, Justices Anthony Kennedy and Stephen Breyer assert that the Supreme Court has agreed voluntarily to abide by the Code of Conduct. Click here to see the transcript.
May 3, 2011: A letter sent to the subcommittee by a Court official – in response to an inquiry by Common Cause – says that the justices consider the Code of Conduct merely advisory.
May 9, 2011: Common Cause urges Chief Justice John Roberts to clarify the Court’s position on the applicability of the Code of Conduct to the justices. In a letter to Roberts, Common Cause suggests that the justices adopt and publicly release a resolution pledging their compliance with the code and establishing an internal mechanism for enforcing it. Roberts has not responded. Click to see the letter we sent to Chief Justice Roberts.
June 18, 2011: The New York Times reports that Justice Thomas aided in the solicitation of multi-million dollar donations from Dallas-based developer Harlan Crow for a charitable project near his Savannah, Ga. childhood home. The Times also reports that Thomas appears to have accepted, but not reported, trips on Crow’s corporate jet and his yacht. Failure to disclose such travel would be a criminal offense and fundraising activities by judges are barred by the Judicial Code of Conduct. Common Cause writes to Thomas and Chief Justice Roberts to again urge full disclosure and prompt action to ensure that the court is complying with the highest ethical standards. Neither Thomas nor Roberts has responded.
July 7, 2011: In a Freedom of Information Act (FOIA) request to the U.S. Marshals Service, Common Cause seeks copies of government records relating to travel by Justice Thomas. The request is aimed at determining whether Justice Thomas traveled on a plane owned by Harlan Crow on seven occasions over the past four years, and if so, whether those trips were properly disclosed. Federal law requires all federal officials to disclose who pays for their travel.
July 7: In a letter to the president of the American Bar Association, Common Cause urges the nation’s largest group of lawyers to join in efforts to persuade the Court to publicly embrace the code of conduct that all other federal judges must follow and to enforce tough ethical standards on its members.
September 13, 2011: Common Cause and Alliance for Justice write to the Judicial Conference, an administrative arm of the federal court system, urging it to refer Thomas’ failure to disclose his spouse’s income to the Department of Justice for investigation.
September 29, 2011: Rep. Louise Slaughter (D-NY), Ranking Member of the House Rules Committee, leads 19 other House members in calling on the Judicial Conference to refer the Thomas disclosure issue to the Department of Justice. Says Slaughter: "To believe that Justice Thomas didn't know how to fill out a basic disclosure form is absurd.”
October 5, 2011: Old disclosure forms uncovered by Common Cause and Alliance for Justice, indicate that Justice Thomas accurately completed his reports for at least seven years before he began – inaccurately -- checking “NONE” on the section seeking details about his wife’s employment. This new information is at odds with Thomas’ assertion that the omissions were simply due to a “misunderstanding of the filing instructions”. A letter to the Judicial Conference from Common Cause and Alliance for Justice, urges that the matter be referred to the Attorney General for investigation, of Thomas’ apparent failure to comply with the 1978 Ethics in Government Act.
Click to see our letter to the Judicial Conference and our chart showing Thomas’ disclosure record.
November 14, 2011: Hours after considering whether to hear challenges to national health care reform, Justices Thomas and Scalia are honored at a Federalist Society fundraiser sponsored in part by law firms engaged in the litigation. If any other judge did this, he or she would be in violation of the Code of Conduct for US Judges, which states: a judge “may not be a speaker, a guest of honor, or featured on the program of such an event.” Thomas and Scalia were all three.
December 31, 2011: Chief Justice John Roberts dedicates his 2011 Year-End Report on the Federal Judiciary to the issue of Supreme Court judicial ethics. He writes that “as a practical matter, the [Judicial] Code [of Conduct] remains the starting point and a key source of guidance for the Justices.”
June 7, 2013: Justice Antonin Scalia discloses that he was reimbursed for travel, food and lodging for an August 2012 speech he gave before a Hollywood organization of conservative political activists called “Friends of Abe.” A historian at the University of Southern California described “Friends of Abe” as “[t]he most important source of underground political activism in Hollywood today.” Common Cause called on Justice Scalia to disclose a copy of his itinerary, agenda and speakers list for the event, as well as a copy of the speech he delivered, and a public explanation as to whether his conduct was or was not in violation of the Judicial Code of Conduct. Read our letter to Justice Scalia here.