Justices must disclose travel and gifts under new rules
Supreme Court justices will be required to disclose more of their activities, including some free trips, air travel and other types of gifts, according to rules adopted earlier this month.
Under the new rules, justices and other federal judges must report travel by private jet, as well as stays at commercial properties, such as hotels, resorts or hunting lodges.
The move comes as members of Congress have called for the justices, who have long faced less stringent reporting requirements, to be held to ethics standards similar to those for the executive and legislative branches.
“To the extent this becomes a model for further activity for the Judicial Conference to clean up the Supreme Court mess, I think that’s significant,” said Sen. Sheldon Whitehouse, D-R.I., who sits on the Judiciary Committee’s panel that oversees federal courts.
Some advocates pushing for greater transparency on the court cautioned that the rules would be hard to enforce and that it would be nearly impossible to know whether a justice had failed to disclose a trip, flight or other perk.
“The problem with any sort of transparency rule within the judiciary is the question of enforcement, the question of accountability,” said Gabe Roth, executive director of Fix the Court, an organization critical of the court’s transparency.
Without additional requirements, including a quicker turnaround for disclosing travel and gifts and penalties for failures to comply, the new measures are likely to have a limited effect, Roth said.
“The bar is so low that you can get credit for doing the bare minimum,” he said. “Small but significant is where I’m at.”
The new rules, which went into effect March 14, were adopted by a financial disclosure committee of the Judicial Conference of the United States, the policymaking body for the federal courts.
At a meeting in January, the committee discussed whether judges and justices would be required to file disclosures when they are hosted at commercial properties, such as resorts, according to a letter to Whitehouse from Judge Roslynn R. Mauskopf, the director of the Administrative Office of the U.S. Courts, which provides support for the court system.
By federal law, justices must file forms each year disclosing financial ties, including gifts. However, the rules for travel that is considered “personal hospitality” were not clearly defined, including for stays at commercial properties or trips in which a third party pays.
It is unclear precisely how oversight and enforcement would work for the justices. A court spokesperson declined to comment.
The most common enforcement mechanism stems from the Judicial Conduct and Disability Act, which describes “misconduct” as “knowingly violating requirements for financial disclosure.” If an allegation arose, the chief judge of a circuit could review it and determine whether a punishment is warranted, but the act does not apply to the Supreme Court.
Questions around travel by the justices have persisted for years, particularly since the death of Justice Antonin Scalia in 2016. Scalia died while on a hunting trip at a lodge in West Texas owned by a businessman involved in a case that the court declined to hear in 2015.
Scalia, who had been staying at the ranch for free, had taken more than 250 subsidized trips from 2004 to 2014.
In 2014 alone, he went on at least 23 privately funded trips, including to Ireland, Switzerland and Hawaii.
Scalia had been invited to the ranch by John Poindexter, the owner of a Texas manufacturing firm. One of Poindexter’s companies, the Mic Group, had been the defendant in an age discrimination lawsuit by a former employee who had unsuccessfully sought review by the Supreme Court the year before.
But Scalia was hardly alone in accepting privately paid trips. From 2004 to 2014, Justice Stephen Breyer took 185 such trips, according to a database by the Center for Responsive Politics.
The issue of privately paid travel also emerged in 2011, a year after the landmark campaign finance case Citizens United, which allowed unlimited corporate spending in elections. A liberal advocacy group, Common Cause, argued that Scalia and Justice Clarence Thomas should have recused themselves from hearing the case because they traveled to a political conference in Palm Springs, California, sponsored by businessman Charles G. Koch, one of the biggest donors to Republicans.
Legal experts greeted this month’s move with cautious optimism.
“In my world of transparency and judicial ethics, what we had until now was little more than a joke,” said Stephen Gillers, a professor emeritus at the New York University School of Law who specializes in legal ethics. “The rules were very lax and tolerated circumvention, and now we’ve taken a giant step away from that.”
However, he said there was still a long way to go toward transparency and accountability, pointing to the lag time between when a gift is received and when it must be reported. Justices have until May 15 of the year after receiving a gift before they must report it.
In theory, if a justice “knowingly and willfully” failed to comply with the rules, the attorney general could bring a case. In practice, though, he said, that has never happened. He added that it was also impossible to know how individual justices would respond to the stricter rules.
“There’s no enforcement mechanism at the Supreme Court,” he said. “It will be up to each justice.”
This article originally appeared in The New York Times.
