by Timothy L. O’Brien
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, 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part of a bigger problem: The Supreme Court’s conflicts of interest and financial disclosure rules remain ragged and outdated.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.
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. “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.
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 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-$500,000 worth of Microsoft Corp. 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 Inc. in 2016 while still holding $100,001-$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 unreasonable. Sotomayor, also unreasonably, reported none of this in her disclosure forms that year.
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.
Timothy L. O’Brien is a senior columnist for Bloomberg Opinion.
