A lot of hand-wringing has accompanied Supreme Court Justice Amy Coney Barrett's $2 million book deal (including from those of us who wish we had a $2 million book deal). While there's always reason to worry when big piles of money land on the court, and Coney Barrett has wasted little time monetizing her new job, some larger points are getting lost in all of this.
After all, Coney Barrett isn't the first justice to reel in a big book deal. Justice Sonia Sotomayor collected an advance of more than $3 million for her memoir, and Justice Clarence Thomas got $1.5 million for his. Justice Neil Gorsuch was paid $225,000 for a book about the Constitution. Here's the rub: Federal ethics guidelines mandate that justices can't accept more than about $30,000 annually in outside pay. However, book income — which can reliably bring in much larger sums than the relatively modest pay justices receive for teaching gigs — is exempt from the guidelines.
When these deals arise, concerns are often voiced about justices being compromised by pocketing money from publishers who might have free speech and other issues affecting them before the court. But books are only a small part of a bigger problem: The Supreme Court's conflicts of interest and financial disclosure rules remain ragged and outdated.
Unlike every other member of state and federal judiciaries, the court's nine justices aren't subject to an ethical code of conduct. That mirrors the latitude given the presidency, which also isn't beholden to most guidelines circumscribing financial and professional practices of people in lower-ranking government jobs. Former President Donald Trump's tenure, marked by flagrant financial conflicts of interest, is a reminder of how ineffective self-regulating ethics are when someone isn't really interested in self-regulation.
The modern court, to be sure, has never approximated the tawdry corruption that enveloped the Trump administration, and polling indicates that it remains widely trusted and admired — especially compared with other branches of government. But while the court has always said it is capable of minding its own store, evidence showing otherwise has piled up in recent years. This isn't partisan; liberal and conservative justices alike have had notorious lapses.
"No justice is blameless and all of them have missed disclosures they should have made — all of them," says Gabe Roth, executive director of Fix the Court, a group that monitors transparency and disclosure issues and advocates legislation to resolve some of the court's problems. "Just because the Supreme Court says it isn't the same as the legislative or executive branches doesn't mean it's exempt from basic measures of transparency."
Roth's group has pushed for a new ethics code for the court, more detailed and timely financial disclosures, a ban on owning individual stocks, disclosure of public appearances outside the court, greater media access, more live broadcasts of hearings, and 18-year term limits. Fix the Court's website is stocked with evidence for why all this makes sense.
In recent years, nearly every justice has been questioned on issues ranging from failure to recuse themselves from cases in which they might have had a financial or personal conflict to accepting pricey travel packages and expensive gifts. They've been dinged for participating in partisan fundraisers and making baldly partisan comments to the public. They've also been criticized, of course, for cashing in on books.
Some court scandals from earlier eras seem relatively quaint today. Abe Fortas was forced off the court in 1969 for accepting a $20,000 annuity from a Wall Street financier earlier in his career. William O. Douglas was criticized for accepting $350 for a magazine article he wrote about folk music. William Rehnquist and Sandra Day O'Connor wrote books for modest sums and nobody complained.
Some court standards tightened after Watergate, when the 1978 Ethics in Government Act was passed to stem federal corruption. The act requires justices to file annual disclosures about their and their immediate family members' financial interests. In practice, it has pushed them to disclose potential financial conflicts (and ideally recuse themselves) without having to divest their holdings — and without being prohibited from owning shares in companies with cases that might come before the court. Problems have arisen.
In 2016, Chief Justice John Roberts disclosed he had sold $250,000 to $500,000 worth of Microsoft stock during the previous year. He sold the shares prior to hearing a case involving the company's lucrative gaming system, but that wasn't disclosed until well after the fact. He joined in the court's denial of an appeal in a case involving Texas Instruments in 2016 while still holding $100,001 to $250,000 worth of that company's stock. After Fix the Court reported the conflict, the court acknowledged that Roberts should have recused himself.
On the junket and gifts front, in 2016, the University of Rhode Island reimbursed Sotomayor $1,045 for a flight so she could be the school's commencement speaker. That's reasonable. The university also paid for a block of 11 hotel rooms for the justice, members of her family and her security detail. That seems highly unreasonable. Sotomayor, also unreasonably, reported none of this in her disclosure forms that year.
While the law requires justices to disclose and address potential conflicts involving family members, Thomas has been repeatedly called out for not recusing himself from cases in which his wife, Ginni, might have an interest. For several years he failed to disclose that his wife had received hundreds of thousands of dollars in income from the Heritage Foundation, a conservative think tank. Thomas eventually amended 20 years of disclosure forms to account for his wife's employment.
So it goes. And so it's likely to continue unless the court embraces transparency and adopts and enforces more sophisticated and stringent conflicts policies. The Brennan Center for Justice, a bipartisan policy center says such measures are necessary for the court to "model commitment to the rule of law."
If the court doesn't better police itself, congressional oversight might be needed to push for the changes. Democrats in the House of Representatives recently introduced the "Twenty-First Century Courts Act," which seeks to establish a code of conduct for the court, require online financial disclosures, offer public explanations for why and when justices recuse themselves, and provide audio access to hearings. Democrats in the Senate introduced the "Judicial Travel Accountability Act" last fall.
But Congress ultimately may lack the constitutional power to mandate ethics guidelines for the court (an issue that the court itself would possibly end up needing to rule on). President Joe Biden has set up a commission to examine whether the court should be restructured. That's a contentious matter that the commission is unlikely to resolve, and it's not clear whether it will address more manageable issues such as financial conflicts.
To avoid seeing outsiders try to resolve its ethical problems, the court should take them up on its own. While the justices remain widely trusted, that faith is increasingly falling along partisan lines. In some polls, a majority of respondents don't think the justices make impartial decisions. With its legacy and reputation at stake, the Roberts court should demonstrate that it's fully committed to ethics and transparency.
Timothy L. O'Brien is a senior columnist for Bloomberg Opinion.