We’re thinking that the Supreme Court should schedule a movie night soon. The justices can pop some popcorn, snag some Jujubes, and then sit down to watch our videos on Conflicts of Interest. Supplemented by our Self-serving Bias video, we’d like to think that the jurists might learn a valuable lesson. Our optimism in this regard is tempered by the fact that our earlier blog post on Antonin Scalia and conflicts of interest [https://ethicsunwrapped.utexas.edu/biases-of-a-supreme-court-justice] does not seem to have done the job. So perhaps they should watch our Overconfidence Bias video as well.
Simply put, being a justice on the Supreme Court does not automatically mean that one is supremely impartial. Justices are humans, and all humans are subject to the self-serving bias, which causes us to tend to conclude that what is best for us is also what is best. Therefore, the justices must guard against the impact of conflicts of interest.
In her last years on the Court, Justice Ruth Bader Ginsburg became more than just a jurist. She became an icon, symbolizing, especially for the daughters of progressives, everything that women could become. She was the “Notorious RBG,” glorified in movies and on t-shirts. Ginsburg seemed to relish the attention and happily embraced her role, accepting, for example, an award in 2010 from the Women’s National Democratic Club.
We suggest that if a Supreme Court justice must decide, say, a question of statutory interpretation–where the best evidence is that Congress intended a meaning favorable to conservatives and unfavorable to progressives–that being a celebrated, highly publicized hero to progressives everywhere will make it at least a tad more difficult for that justice to do her duty when deciding the case. It is, as noted, just human nature.
By now, you certainly know where this blog post is going. While there have been many defenses raised on behalf of Justice Clarence Thomas, none of them seem to seriously challenge most of the reported revelations indicating that billionaires (with very clear preferences as to how controversial, high-profile cases should be decided) have found multiple avenues for funneling money to Thomas who has voted with their preferences every time. As summarized by Forbes:
- Harlan Crow Trips: ProPublica first reported Thomas has for years accepted trips from GOP megadonor and developer Harlan Crow, including on his private jet and superyacht, without disclosing them on financial disclosures as federal law requires.
- Harlan Crow Tuition: ProPublica also reported recently that Crow also paid two years of tuition for Thomas’ grandnephew Mark Martin, whom the justice has custody of, to attend two private schools in the 2000s, which cost $6,000 per month at one of the schools and were similarly not disclosed—even as Thomas did disclose a tuition payment a different friend made years earlier.
- Harlan Crow Real Estate: Thomas and his family also sold a string of properties in Savannah, Georgia, to Crow in 2014 without disclosing that as required, ProPublica reports—including the home where his mother still lives—which Crow told the publication he purchased so he could eventually build a museum dedicated to the justice.
- Ginni Thomas Conservative Activism: Thomas’ wife, Ginni Thomas, is a right-wing activist, which has raised considerable ethics concerns about overlap between her and her husband’s work—particularly as the New Yorker reported groups she’s been involved with have submitted briefs before the Supreme Court, including a group that has weighed in on the court’s pending case about affirmative action in university admissions.
- Ginni Thomas Leonard Leo: Leo, a conservative judicial activist who’s spent billions on efforts to reshape the federal courts, including the Supreme Court, told then-conservative pollster Kellyanne Conway to give Ginni Thomas “another $25k” through a nonprofit group he advises—which then filed a brief with the Supreme Court—but conceal that the payment was for her, the [Washington] Post reports, telling Conway, “No mention of Ginni, of course.”
In sum, whether through Thomas’s wife, Thomas’s mother, Thomas’s grandnephew, or directly to Thomas himself, billionaires with definite agendas regarding a variety of court cases have secretly given Thomas benefits worth hundreds of thousands of dollars. There have been obvious efforts to hide the payments, though there is some question as to whether those efforts violated applicable disclosure rules. Nor is it clear to us whether Thomas should have, had he disclosed these payments, necessarily recused himself from the relevant cases. What is obvious, is that once a justice has accepted hundreds of thousands of dollars of benefits from a person as Thomas did, the justice will feel a natural reluctance to disappoint that person with a vote on an important case.
And Justice Thomas has had company in recent headlines, with Chief Justice Roberts (whose wife made a boatload of money working with important law firms), Justice Gorsuch (who benefited from a real estate sale to a big law firm right after being confirmed), and Justice Sotomayor (who failed to recuse herself from cases involving publishers of books she had written).
To be realistic, we must remember that by the time justices join the Supreme Court, they are adults with their own life experiences, personal political and philosophical views, circles of friends, trusted advisors, dependent relatives, and so on. They have not lived life in a bubble. Nor should we expect them to do so once they join the Court. If all the justices recused themselves from every case in which they had the slightest potential connection to interested parties, there might be no one left to decide the cases.
At the same time, we suggest that it is not too much to ask that the justices step back just a bit from public life. It seems a small sacrifice in exchange for the privilege of holding such a powerful position. Indeed, it seems a necessity if the prestige, honor, and influence of the Court are to be preserved. The people’s respect for the Court is at low ebb.
We urge every justice, not just Justice Thomas, to remember that they, like all human beings, are subject to the self-serving bias and the overconfidence bias, and therefore are vulnerable to conflicts of interest and must be very wary. Justice Scalia laughed off the notion that close personal relationships with litigants appearing before the Court could affect his judgment. That was arrogant and surely wrong.
Harvard Business School psychologist Max Bazerman observes that because of the self-serving bias, “[p]eople tend to confuse what is personally beneficial with what is fair or moral.” If Joe gives us a big chunk of money, it is very difficult for us to see that as a bad thing. But many psychological studies indicate that money has a strong influence on most people, even when they do not realize it. Therefore, it is unsurprising that studies show that CEOs and CFOs are more likely to fudge the numbers if to do so can help them attain a bonus target at year’s end, and that the more money is at stake the more likely they are to fudge. This is neither surprising, nor confined to C-suite executives.
(If you want another example of the self-serving bias, note how outraged progressives are over disclosure of the payments to Justice Thomas contrasted with how much of a nothingburger conservatives think they are.)
Despite the evidence of how impactful the self-serving bias is on people’s moral judgments and actions, because of the overconfidence bias, people also generally believe that they don’t really need to concern themselves with conflicts of interest. Around 80% of people believe that they are above average in terms of morality and 92% of Americans in one poll were satisfied by their moral character.
Therefore, it is unsurprising that studies show that people who recognize that other individuals are influenced by conflicts of interest tend to believe that they themselves are relatively immune.
Other studies show that members of various professions believe that higher ethical standards are needed for members of other professions, but that their profession is doing just fine, thank you very much.
Critically, judges – who have a duty to be impartial and unbiased in their assessments and judgments in court – are similarly vulnerable to these biases. As we noted in our blog post about Justice Scalia:
When it was suggested that Justice Scalia’s going on a hunting expedition with a person heavily involved in a case before the Court might create a conflict of interest, he was simply incredulous that anyone might voice even the slightest concern about his objectivity. His comments, [psychologists] Bazerman and Tenbrunsel have noted, “indicate that he rejects or is unaware of the unambiguous evidence on the psychological aspects of conflicts of interest.”
We urge all nine justices on the Court to be wary of the self-serving bias, the overconfidence bias, and their own resultant vulnerability to conflicts of interest. They should take the evidence into account in determining how to live their lives, whether or not to disclose potential conflicts, and whether to recuse themselves from cases pursuant to 28 U.S.C. Sec. 455. The American people deserve no less.
Max H. Bazerman & Ann E. Tenbrunsel, Blind Spots: Why We Fail to Do What’s Right and What to Do About It (2011).
Alison Durkee, “Clarence Thomas: Here Are All the Ethics Scandals Involving the Supreme Court Justice Amid New Revelations,” Forbes, May 5, 2023, at https://www.forbes.com/sites/alisondurkee/2023/05/05/clarence-thomas-here-are-all-the-ethics-scandals-involving-the-supreme-court-justice-amid-new-revelations/?sh=a0609e3ab84a.
Tigran Eldred, “Prescriptions for Ethical Blindness: Improving Advocacy for Indigent Defendants in Criminal Cases,” Rutgers Law Journal 65: 333 (2012).
Jared Gans, “Conservatives Criticize Liberal Supreme Court Justices for Ethics Issues,” The Hill, May 4, 2023, at https://thehill.com/regulation/court-battles/3988846-conservatives-criticize-liberal-supreme-court-justices-for-ethics-issues/.
Jared Harris & Philip Bromiley, “Incentives to Cheat: The Influence of Executive Compensation and Firm Performance on Financial Misrepresentation,” Organization Science 18(3): 350367 (007).
Brianna Herlihy, “Friend Rips Media’s ‘Despicable’ Effort to ‘smear’ Clarence Thomas for GOP Donors’ Payment to School,” Fox News, May 4, 2023, at https://www.foxnews.com/politics/clarence-thomas-friend-speaks-against-despicable-story-revealing-gop-donor-paid-relatives-tuition.
Marianne Jennings, “Ethics and Investment Management: True Reform,” Financial Analysts Journal 61(3): 45-58 (2005).
Nick Mordowanec, “Conservatives Call Out Sotomayor’s $3M from Publisher Amid Thomas Reports,” Newsweek, May 4, 2023, at https://www.newsweek.com/conservatives-out-sotomayor-3-million-dollar-publisher-thomas-reports-1798460
Ed Pilkington, “Judicial Record Undermines Clarence Thomas Defence in Luxury Gifts Scandal,” The Guardian, Apr. 28, 2023, at https://www.theguardian.com/us-news/2023/apr/20/clarence-thomas-supreme-court-harlan-crow-luxury-gifts.
Corey Robin, “The Clarence Thomas Scandal Is About More than Corruption,” POLITICO, Apr. 18, 2023, at https://www.politico.com/news/magazine/2023/04/18/clarence-thomas-scandal-corruption-00092335.
Michael Steinman et al., “Of Principles and Pens: Attitudes of Medicine House Staff Toward Pharmaceutical Industry Promotions,” American Journal of Medicine 110: 551-557 (2001).
Conflict of Interest: https://ethicsunwrapped.utexas.edu/video/conflict-of-interest
Overconfidence Bias: https://ethicsunwrapped.utexas.edu/video/overconfidence-bias
Self-Serving Bias: https://ethicsunwrapped.utexas.edu/video/self-serving-bias
Ethics in Focus
Financial Conflicts of Interest in Research: https://ethicsunwrapped.utexas.edu/video/financial-conflicts-of-interest-in-research
Conflict of Interest: https://ethicsunwrapped.utexas.edu/glossary/conflict-of-interest
Overconfidence Bias: https://ethicsunwrapped.utexas.edu/glossary/overconfidence-bias
Self-Serving Bias: https://ethicsunwrapped.utexas.edu/glossary/self-serving-bias
“Biases of a Supreme Court Justice: https://ethicsunwrapped.utexas.edu/biases-of-a-supreme-court-justice.
Did Clarence Thomas violated ethics rules? ›
And a Washington Post investigation found Thomas has repeatedly claimed income from a real estate company that no longer exists. Thomas's lack of disclosure about these trips and property sales is a clear violation of government ethics law, according to legal experts.Is Supreme Court Justice Thomas conservative or liberal? ›
Conservatism and originalism
Thomas is often described as an originalist and as a textualist. He is often described as the Court's most conservative member, though others gave Justice Antonin Scalia that designation while they served on the Court together.
One provision directs government officials, including justices and judges, to report annually “all gifts [above a certain amount] received from any source other than a relative. . ., except that any food, lodging, or entertainment received as personal hospitality of an individual need not be reported.” The “personal ...What is the rule of 4? ›
The “rule of four” is the Supreme Court's practice of granting a petition for review only if there are at least four votes to do so. The rule is an unwritten internal one; it is not dictated by any law or the Constitution.What rule did Thomas break? ›
Thomas has broken the Glade's number one rule: No one but the Runners are allowed into the Maze. In a society that relies on order and trust, rule-breaking requires punishment if trust is ever to be gained.Does the Supreme Court have a code of ethics for justices? ›
Federal judges must abide by the Code of Conduct for United States Judges, a set of ethical principles and guidelines adopted by the Judicial Conference of the United States.How many Democrats voted for Justice Thomas? ›
Confirmation vote by full Senate
In all, Thomas won with the support of 41 Republicans and 11 Democrats, while 46 Democrats and 2 Republicans voted to reject his nomination.
As of June 30, 2022, of the 9 justices of the Supreme Court, 6 were appointed by a Republican president, and 3 were appointed by a Democratic president. As of February 14, 2023, of the 179 Courts of Appeals judges, 91 were appointed by Republican presidents, compared to 79 by Democratic presidents.What different religions are represented on the Supreme Court? ›
Do Not Exaggerate, Mislead, or State Anything Untrue. It goes without saying that you should never lie to a judge (that is perjury), but you should also avoid exaggerating the facts or misleading the court about any issue. Most judges can sense when a witness is stretching the truth, and they do not appreciate it.
What is unethical for a judge? ›
Common complaints of ethical misconduct include improper demeanour; failure to properly disqualify when the judge has a conflict of interest; engaging in ex parte communication and failure to execute their judicial duties in a timely fashion.Can justices get fired? ›
The Constitution states that Justices "shall hold their Offices during good Behaviour." This means that the Justices hold office as long as they choose and can only be removed from office by impeachment.What are the 3 types of Supreme Court decisions? ›
- Affirm—allow the lower court's ruling to stand;
- Reverse, Void, or Vacate—overturn the lower court's ruling; or.
- Remand—send the case back to a lower court for a retrial.
First, as the highest court in the land, it is the court of last resort for those looking for justice. Second, due to its power of judicial review, it plays an essential role in ensuring that each branch of government recognizes the limits of its own power.What is the rule of four certiorari? ›
In the Supreme Court, if four Justices agree to review the case, then the Court will hear the case. This is referred to as "granting certiorari," often abbreviated as "cert." If four Justices do not agree to review the case, the Court will not hear the case. This is defined as denying certiorari.What was Thomas last words? ›
On his execution, he was reported to have said: "I die the King's good servant, and God's first".Why did Teresa betray Thomas? ›
In the book, she betrays Thomas, because WCKD threatens her that they will kill him. So she does it to save him. In the Death Cure, Teresa tells Thomas that she only ever cared for him.Who threatens Thomas's life at the gathering? ›
Summary: Chapter 25
Minho says that Thomas acted heroically in the Maze, saving Alby's life and destroying the Grievers. Gally and Minho fight, and when Newt pulls Minho off Gally, Gally leaves, threatening to put a stop to whatever Thomas is up to and kill him if necessary.
Some of the most common examples of a conflict of interest that would lead an assigned judge to recuse themselves voluntarily include situations in which: They have a familial relationship to one of the attorneys involved in the case. They have a possible financial interest in the result of the case.Who must obey the Supreme Court? ›
The Supreme Court has no power to enforce its decisions. It cannot call out the troops or compel Congress or the president to obey. The Court relies on the executive and legislative branches to carry out its rulings. In some cases, the Supreme Court has been unable to enforce its rulings.
Who has the greatest responsibility for ethical conduct in the judicial system? ›
The greatest responsibility for ethical conduct in the judicial system lies with the judges, attorneys, and other court personnel who are entrusted to carry out the processes of the court. However, citizens also play an important role in the system, both in terms of their own actions and in terms of accountability.How much is Clarence Thomas worth? ›
According to Clarence's latest financial report, his minimum net worth is $600,000 and his maximum net worth is $1 million. His annual salary as a Supreme Court justice is $220,000. He was nominated to the Supreme Court by George H. W.Who is the newest member of the Supreme Court? ›
Biden, Jr., First Lady Dr. Jill Biden, Vice President Kamala Harris, and Second Gentleman Douglas Emhoff attended as guests of the Court. On June 30, 2022, Justice Jackson took the oaths of office to become the 104th Associate Justice of the Supreme Court of the United States.Where did Justice Thomas go to college? › How many of the Supreme Court justices are liberal? ›
The court's three liberal members — Breyer, Sotomayor and Kagan — dissented.How many Supreme Court justices are Catholic? ›
The current Court has six Catholics in the majority: Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, plus a liberal Catholic (Justice Sotomayor), a Jew (Justice Kagan), and a Protestant (Justice Ketanji Brown).Which president appointed the most Supreme Court justices? ›
George Washington holds the record for most Supreme Court nominations, with 14 nominations (12 of which were confirmed). Four presidents—William Henry Harrison, Zachary Taylor, Andrew Johnson, and Jimmy Carter—did not make any nominations, as there were no vacancies while they were in office.What percent of US is Catholic? ›
Roughly 48.9% of Americans are Protestants, 23.0% are Catholics, 1.8% are Mormons (members of the Church of Jesus Christ of Latter-day Saints). Christianity was introduced during the period of European colonization.Has the US Supreme Court defined religion? ›
The First Amendment provides that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."3 Although the Supreme Court has discussed the concept of "religion" in several cases,4 it has not provided a specific definition to govern cases arising under the religion ...Does the Supreme Court define religion? ›
It is clear that in the United States the Supreme Court has the power to define religion. So the source of its definition will be a critical factor in public acceptance of its decisions.
Can a judge yell at you? ›
That was followed by her Texan colleague, Judge Melissa Bellan, who responded, "What if you're a judge who's yelled at another judge?" The lesson is that, apparently, judges will yell at anyone at any time, so get ready for it.Can you cuss at a judge? ›
Criminal contempt is an action that impugns the integrity of the court or brings the court into disrepute. For example, yelling curse words at a judge would be direct criminal contempt of court.Can a judge disrespect you? ›
Judges confront disrespect in various ways, sometimes saying something at the time it occurs, at a later time, or by doing nothing at all. Contempt citations are the last resort.What is a mistake of law by a judge? ›
Mistake of law is a legal principle referring to one or more errors that were made by a person in understanding how the applicable law applied to their past activity that is under analysis by a court. In jurisdictions that use the term, it is differentiated from mistake of fact.Can judges violate constitutional rights? ›
Clothed with the power of the state and authorized to pass judgment on the most basic aspects of everyday life, a judge can deprive citizens of liberty and property in complete disregard of the Constitution.How can a judge be corrupt? ›
Judges can also be bribed, or subject to political pressure and interference from above. Corruption in the judicial system breaks the basic principle of equality before the law and deprives people of their right to a fair trial.On what grounds can a Supreme Court Justice be impeached? ›
Article II, section 4 of the U.S. Constitution defines the grounds for impeachment and conviction as ''treason, bribery, or other high crimes and misdemeanors.Who can remove justices? ›
Federal judges can only be removed through impeachment by the House of Representatives and conviction in the Senate. Judges and Justices serve no fixed term — they serve until their death, retirement, or conviction by the Senate.Do justices have immunity? ›
“Judges and judicial officers have always been awarded 'absolute' immunity for their judicial acts. Absolute immunity covers even conduct which is corrupt, malicious or intended to do injury.” State ex rel. Jacobs v. Sherard, 36 N.C. App 60, 64 (1978).What is the most important legal influence on Supreme Court decisions? ›
Faced with a court ruling that overturns one of its laws, Congress may rewrite the law or even begin a constitutional amendment process. But the most significant check on the Supreme Court is executive and legislative leverage over the implementation and enforcement of its rulings.
Is the Supreme Court decision final? ›
When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.What is it called when all judges agree? ›
A unanimous opinion is one in which all of the justices agree and offer one rationale for their decision. A majority opinion is a judicial opinion agreed to by more than half of the members of a court.Who can overturn a Supreme Court decision? ›
Court can declare a law unconstitutional; allowing Congress to override Supreme Court decisions; imposing new judicial ethics rules for Justices; and expanding transparency through means such as allowing video recordings of Supreme Court proceedings.What is the least powerful branch of government? ›
Setup. As Alexander Hamilton famously wrote in the Federalist Papers, the judiciary is the weakest of our three branches of government. Without “purse” or “sword,” the US Supreme Court is dependent on the willingness of others to enforce its orders and on the public's belief in its impartiality to ensure compliance.What are habeas corpus rights? ›
The "Great Writ" of habeas corpus is a fundamental right in the Constitution that protects against unlawful and indefinite imprisonment. Translated from Latin it means "show me the body." Habeas corpus has historically been an important instrument to safeguard individual freedom against arbitrary executive power.Which court has the power to overrule the decision of a federal appeals court? ›
The Supreme Court of the United States is the highest court in the American judicial system, and has the power to decide appeals on all cases brought in federal court or those brought in state court but dealing with federal law.What is meant by the term stare decisis? ›
Stare decisis, Latin for to stand by things decided, 1. The full Latin phrase is stare decisis et non quieta movere—stand by the thing decided and do not disturb the calm.What types of cases is the Supreme Court most likely to take? ›
Most common—roughly two-thirds of the total—are requests for review of decisions of federal appellate or district courts. The great majority of cases reach the Supreme Court through its granting of petitions for writs of certiorari, from the Latin certiorari volumnus, “we wish to be informed.”What are the ethics rules of the US Supreme Court? ›
Federal law requires judges, including supreme court justices, recuse themselves from any matter “in which his impartiality might reasonably be questioned”, but unlike other judges and federal employees, the court has no formal ethics code.How does the ethics in Government Act apply to the Supreme Court? ›
The justices are required to follow the Ethics and Government Act, which requires that they submit annual financial disclosure forms. And they're limited by other laws that prevent them from accepting gifts from parties before them.
What happens if a Supreme Court justice breaks the law? ›
Judicial Council of Tenth Circuit of U.S., 398 U.S. 74, 140 (1970) (Douglas, J., dissenting) ( Federal judges are entitled, like other people, to the full freedom of the First Amendment. If they break a law, they can be prosecuted.Does the Ethics in Government Act of 1978 apply to Supreme Court justices? ›
Further, the Ethics in Government Act of 1978 requires all federal judges, including Supreme Court justices, to submit annual financial disclosures, and there are civil penalties for failure to comply and criminal penalties for falsifying their disclosure.How many laws has the Supreme Court ruled unconstitutional? ›
As of 2014, the United States Supreme Court has held 176 Acts of the U.S. Congress unconstitutional. In the period 1960–2019, the Supreme Court has held 483 laws unconstitutional in whole or in part.What is Rule 11 of the US Supreme Court? ›
A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate ...What is an example of justice rule in ethics? ›
Rules that prevent smoking in residents' rooms are enforced without exception as dictated by the principle of Justice, thereby restricting individual autonomy. Therefore, Justice demands that one's right to exercise Autonomy is limited when it affects the safety and well-being of another person.Can the Supreme Court rule actions of our government to be unconstitutional? ›
The best-known power of the Supreme Court is judicial review, or the ability of the Court to declare a Legislative or Executive act in violation of the Constitution, is not found within the text of the Constitution itself. The Court established this doctrine in the case of Marbury v. Madison (1803).Does the Supreme Court decide if laws are fair? ›
Although the Supreme Court may hear an appeal on any question of law provided it has jurisdiction, it usually does not hold trials. Instead, the Court's task is to interpret the meaning of a law, to decide whether a law is relevant to a particular set of facts, or to rule on how a law should be applied.Can a state disobey the Supreme Court? ›
Indeed, James Madison—arguably the most important architect of our Constitution—contended that state governments have a legitimate right to defy the Supreme Court when the Court oversteps its constitutional authority.What happens if a justice disagrees with the Supreme Court? ›
The most senior justice in the dissent can assign a dissenting Justice to write the dissenting opinion. If a Justice agrees with the outcome of the case, but not the majority's rationale for it, that Justice may write a concurring opinion. Any Justice may write a separate dissenting opinion.Can the Supreme Court make a mistake? ›
When justices err, the people suffer the consequences. The only corrective is the high court itself, as future generations reconsider once-settled doctrines. But problems often get worse before they get better, because Supreme Court errors are rarely one-offs.
What are common ethical violations of a judge? ›
Common complaints of ethical misconduct include improper demeanour; failure to properly disqualify when the judge has a conflict of interest; engaging in ex parte communication and failure to execute their judicial duties in a timely fashion.What are the 3 constitutional requirements to a Supreme Court justice? ›
The Constitution does not specify qualifications for Justices such as age, education, profession, or native-born citizenship. A Justice does not have to be a lawyer or a law school graduate, but all Justices have been trained in the law.Do Supreme Court justices swear to uphold the Constitution? ›
"I do solemnly swear (or affirm) that I will support the Constitution of the United States."