Keith Watts keeps a framed copy of his decade-old rejection letter from John G. Roberts Jr. The chief justice wouldn’t be able to speak to Watts’s group of corporate lawyers, Roberts told the California attorney. And, Roberts said, he was also returning the first-edition copy of a 19th-century legal treatise Watts had sent along with the invitation.
“It is a wonderful volume, but I am afraid that ethical constraints prevent me from accepting it,” Roberts wrote in the January 2013 letter, which Watts shared with me.
How quaint. Imagine what the fastidious chief justice thinks — imagine how he cringes — on learning about the gusher of benefits that Dallas billionaire Harlan Crow bestowed on Justice Clarence Thomas. All-expenses-paid yacht trips. Private jet flights. Private school tuition for Thomas’s grandnephew. The purchase of his mother’s house. Where Roberts felt obliged to return Watts’s book, Thomas had no evident compunction about accepting a Frederick Douglass Bible valued at $19,000 from Crow.
Do you have a lot of friends who give you $19,000 gifts?
All of this amounts to a headache of migraine proportions for the court, and therefore for Roberts. “I want to assure people that I am committed to making certain that we as a court adhere to the highest standards of conduct,” Roberts said during remarks at the American Law Institute last month. “We are continuing to look at things we can do to give practical effect to that commitment, and I am confident that there are ways to do that consistent with our status as an independent branch of government and the Constitution’s separation of powers.”
What’s a chief justice to do? Roberts has been known to deflect such questions with the observation that he is merely one of nine. But this understates the authority that he could exert, if he so chose. Herewith, my modest proposal for the chief: As unnatural an act as it would be for the conflict-averse Roberts, he needs to tap his inner LBJ. Announcement first, agreement later.
“You’re goddamn sure going to serve, I’ll tell you that,” President Lyndon B. Johnson told Sen. Richard Russell (D-Ga.) in November 1963 about joining the Warren Commission. (Actually, the announcement had already gone out.) Likewise for Roberts. He should decide what the court needs to do and effectively dare his colleagues to dissent.
My proposal has two parts. The first: Roberts should simply tell his colleagues that he plans to announce that the court will officially subject itself to the ethical standards that are binding on other federal judges. Period.
Roberts seems to have had difficulty getting the justices to sign on to this approach, and, granted, my idea invests him with authority he does not formally possess. He is chief justice, not justice in chief; the other members of the court have equal votes. Still, the time for cajoling and waiting has passed; the Thomas revelations are too damaging for the institution to simply let things fester.
He should further name a committee — perhaps of retired judges — to consider what adjustments need to be made to tailor the ethics rules to the particular needs of the high court. For instance, how to deal with recusals, since justices — unlike their lower court brethren — can’t be replaced if they recuse themselves from hearing a case, and therefore might be more reluctant to step aside. One (no doubt unwelcome) suggestion: The justices’ difficult situation would be easier to stomach if they were all to take the sensible step of avoiding investments in individual stocks. The most recent financial disclosure statements show both Roberts and Justice Samuel A. Alito Jr. holding such stocks.
The recusal issue helps illustrate how the court can make progress on ethics, but also how incremental that progress can be. Recusal is usually a black box, with no reason offered for stepping aside. But the justices, in the joint ethics statement sent to the Judiciary Committee in April, noted that a justice “may provide a summary explanation,” and Justice Elena Kagan, a few weeks later, duly noted her “prior government employment” as the basis for not taking part in a death penalty case. Alito, it seemed, couldn’t be bothered to provide any detail when the court issued an order on Tuesday declining to hear a case involving an energy company in which he owns stock. The order merely noted that Alito “took no part” in the case. Really? Why not explain?
Which brings us to my second proposal: How to solve the Thomas problem. Whatever systems are set up to help the justices with ethics rules and reassure the public going forward, the problem of Thomas’s compliance with existing ethics and disclosure rules remains. Because Thomas does not seem inclined to provide a full reckoning of the largesse he has received from Crow — and because Crow rebuffed a request for the same from the Senate Judiciary Committee — the next step could be the chief justice’s.
Again, the LBJ model: Roberts should privately tell Thomas that he plans to announce he is asking the Judicial Conference of the United States, which reviews the justices’ disclosure forms, to examine Thomas’s past compliance. But, Roberts should say, this request would be much better coming from Thomas himself — a voluntary move to assure the public that the justice has followed the law.
As I said, this would be decidedly out of character for Roberts. But this is the Roberts court. Its legacy is his legacy. When Roberts was confirmed as chief justice in September 2005, the court’s approval rating stood at 56 percent in the Gallup poll; the most recent Gallup numbers — from before the Thomas-Crow revelations — have that number down to 40 percent, tied for the historic low. The Marquette Law School poll found that public approval of the court has dropped from 47 percent in January to 41 percent last month.
The court’s approval bounces around. But this is a perilous trajectory. It is happening on the chief’s watch. That makes it his problem to address, if not to solve.
