New reporting requirements for gifts, travel hit Supreme Court

Supreme Court justices as well as other federal judges now must disclose gifts and travel funded by a third party, under new ethics requirements that Chief Justice John G. Roberts Jr. and circuit court judges quietly adopted last month. 

It’s unclear, though, if Justice Clarence Thomas’ recently revealed travel with a Republican mega donor should have been disclosed under the new policy.

“This change happened about a couple weeks ago and it didn’t get much publicity at the time, but I think it was at least somewhat related to the allegations related to Justice Thomas,” said Josh Blackman, a professor at South Texas College of Law. “In the past, it wasn’t clear if transportation from a friend had to be covered.”
 
The change, announced March 14 by the Judicial Conference of the United States, says judges must report any lodging, transportation or gifts that involve a commercial owner or property, such as a hotel, resort or restaurant. The only items that don’t need to be reported are food, lodging and entertainment that are not related to a business purpose or relationship. 

ProPublica on Thursday reported that Justice Thomas and his wife, Ginni Thomas, took luxurious vacations with Harlan Crow, a major GOP donor and real estate developer. The outlet suggested there was an ethical issue with the travel going unreported, noting Mr. Crow has donated to a conservative group founded by Mrs. Thomas.

Justice Thomas defended their travel on Friday, saying he sought guidance from colleagues and was told it did not need to be reported. 

“Harlan and Kathy Crow are among our dearest friends, and we have been friends for over 25 years. As friends do, we have joined them on a number of family trips during the more than quarter century we have known them. Early in my tenure at the court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the court, was not reportable,” he said. 

“I have endeavored to follow that counsel throughout my tenure, and have always sought to comply with the disclosure guidelines. These guidelines are now being changed, as the committee of the Judicial Conference responsible for financial disclosure for the entire federal judiciary just this past month announced new guidance. And, it is, of course, my intent to follow this guidance in the future,” Justice Thomas added. 

Democrats have been pushing for ethics guidelines for the Supreme Court for years, including cameras in the court for increased transparency and specific recusal requirements. 

Most recently, Sen. Sheldon Whitehouse, Rhode Island Democrat and chairman of the Senate Judiciary Committee’s subcommittee on federal courts, oversight, agency action federal rights, praised the new requirements after he asked for clarification from the federal court system.

“The Judicial Conference’s updated rules on financial disclosure are a big step toward closing the loopholes that kept the public in the dark about who was paying for justices’ lavish lifestyles,” Mr. Whitehouse said in a March 28 statement. “These new rules will make it much harder for justices to travel, dine, hunt, or vacation for free at the private resort of a wealthy corporate executive — especially one with business before their court — and avoid disclosing that information to the public. I’m hopeful this rule is a harbinger of more ethics and transparency improvements to come for the Supreme Court.”

Mr. Whitehouse has long argued for transparency in the judiciary, targeting advocacy groups he says use dark money to influence the court’s opinions. 

Judge Roslynn R. Mauskopf, director of the Administrative Office of the U.S. Courts, had told Mr. Whitehouse in a March 23 letter there were updates to personal hospitality guidelines for the federal judiciary, specifying when a judge must disclose personal invitations for dining, travel and gifts. 

“The reporting exemption does not include … gifts paid for by any individual or entity other than the individual providing the hospitality, or for which the individual providing the hospitality receives reimbursement or a tax deduction related to furnishing the hospitality; or gifts extended at a commercial property, e.g., a resort or restaurant,” Judge Mauskopf wrote.

The ProPublica report sparked renewed calls from Senate Democrats to pass a code of conduct for the high court, while liberal groups called for Justice Thomas to resign. 

While lower court judges have a code of ethics that covers recusals and disclosures, the Supreme Court has not imposed strict rules on itself.

Elliot Mincberg, counsel and senior fellow at People for the American Way, a liberal advocacy group, said Justice Thomas should have reported the travel under a federal law that states that federal workers must disclose various gifts in public filings.

“It made perfect sense that the Judicial Conference tried to clarify it. There has been concern about this kind of gift before, and I think it is a step in the right direction but I don’t think it lets Thomas off the hook,” Mr. Mincberg said.

Mr. Blackman noted justices’ travel has been scrutinized in the past. 

The late Justice Antonin Scalia was criticized for traveling and vacationing with former Vice President Dick Cheney as the court was reviewing his administration’s lawsuits. Legal experts argued there was an appearance of bias as the two went hunting together. 

Ilya Shapiro, senior fellow and director of constitutional studies at the Manhattan Institute, defended Justice Thomas.

“Unless Harlan Crow has some business before the Court, the @propublica report about Justice Thomas is a big breathless nothingburger,” he tweeted.

The Judicial Conference meets twice a year, but it does not publicize its agenda. The chief justice of the United States and other chief justices from circuit courts have the final say on what guidance the conference will adopt and impose for the federal judiciary.