Why it's unlikely ethics rules on Supreme Court gift disclosures will work

Transcript

LEILA FADEL, HOST:

The U.S. Supreme Court is facing ethics questions after ProPublica reported last week that Justice Clarence Thomas for years accepted luxury trips from a billionaire GOP mega-donor without disclosing them. Thomas responded to the report with a statement. In it, he said in part that he was, quote, "advised that such hospitality from close personal friends with no business before the court was not reportable." Stricter disclosure rules went into effect last month, but will justices comply? Northwestern University Law Professor Emeritus Steven Lubet says he doesn't think so. And he joins us now to talk about it. Good morning, and thanks for being on the program.

STEVEN LUBET: Good to be with you.

FADEL: So why are you so doubtful that these rules will be effective?

LUBET: Well, there's no enforcement mechanism. And in the past, the justices have adhered to them when they wanted to and not when they didn't. Justice Thomas says he'll follow the new interpretation. I don't really doubt him about that. But it's all very contingent because Chief Justice Roberts and, before him, Chief Justice Rehnquist have both said that the - declined to say that the rules were validly applicable to the U.S. Supreme Court.

FADEL: Now, you said there's no enforcement body? There's no way to make sure justices do comply with this?

LUBET: They're the Supreme Court. They do what they want.

FADEL: So the Judicial Conference of the United States makes the rules, but they don't enforce the rules. I mean, what does this body do?

LUBET: Well, they make the rules. There's an enforcement mechanism that - you know, judges have life tenure. So short of impeachment, there's no penalty that's applicable to the judge - to judges at any level in the federal courts. There is a system in the lower courts of reporting. And it can lead to censure or reprimand. But it does not apply to the U.S. Supreme Court.

FADEL: But this is the highest court in the land. And it's important that Americans trust the court and there isn't a perception of conflict of interest here. So did justices never have to disclose? Were there no rules before March 14...

LUBET: No, there were rules...

FADEL: ...When this went into effect?

LUBET: There were rules before March 14 regarding gift disclosure. The justices said that they would comply with them. They do file annual reports disclosing gifts. I would say that the previous rules definitely covered at least some parts of Justice Thomas' excursions with Mr. Crow. The new rules are much more specific and would absolutely require reporting of these sort - this sort of travel and lavish hospitality.

FADEL: Now, this ProPublica report on Justice Thomas, yes, it's prompted fresh concerns about reforms, conflicts of interests, investigations, but it's not new. These concerns have been around for decades with different justices. What do you want to see to actually address this if this rule is not the answer?

LUBET: Well, the Supreme Court is the only court in the United States that has never adopted a written code of ethics. Every other court has a written code. The U.S. Supreme Court has strenuously resisted announcing what its own standards of ethics are. That should be remedied. They should adopt a code of conduct. At the very least, this will let the public know what the justices expect of themselves. And there will be transparency that we have not had in the past.

FADEL: Steven Lubet is an emeritus professor of law at Northwestern University. Thank you for joining us.

LUBET: Good to be with you. Transcript provided by NPR, Copyright NPR.