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Saturday, June 1, 2024

Why Caesar’s wife should be above reproach – Supreme Courts in eyes of the storm

Life is never easy for those at the helm of affairs, especially not for those in life-term positions of power, and as such, the responsibility of upholding the highest ethical standards becomes even more crucial for them.

As Pakistan deals with controversies over Supreme Court Justices and what is acceptable behavior; if a Supreme Court Justice in Pakistan should have attended the jubilee celebration of the constitution in parliament. Whether justices should provide a public explanation for the funding sources for all assets and report these. A different controversy brews thousands of kilometers away in one of the world’s most respected Supreme Court, in the United States, and over one of the country’s more controversial justices, Justice Clarence Thomas. He joined the bench for a lifetime appointment in October 1991 after being nominated by Republican President George H.W. Bush and is currently the longest-serving justice on the bench at over 31 years.

The scandal over Justice Thomas’s luxury trips funded by a friend blew up at a time when already there were ongoing issues for the US Supreme Court over what are acceptable financial benefits that judges can receive and should disclose from third parties, as well as over when judges should recuse themselves from cases. ProPublica, a news outlet, broke with revelations that Chief Justice Clarence Thomas received numerous luxury trips funded by Harlan Crow, a billionaire, who is one of the country’s large real estate magnates managing billions of dollars of investments and a Republican donor. Thomas has been vacationing with the magnate using his private jet and superyacht and staying in his private resort; according to ProPublica, all, if calculated, would amount to hundreds of thousands of dollars.

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The justice who has defended himself, saying Crow is a friend and that he had been advised that he was not required to report this type of “personal hospitality” under federal rules in his annual financial disclosures. The assertion came in response to a report by the Center for Public Integrity that raised questions about his compliance with the guidelines. The Senate Judiciary Committee has also taken up the issue and has written a letter to Supreme Court Chief Justice John Roberts, urging him to investigate Justice Clarence Thomas’ conduct. Justice Thomas also very recently faced huge criticism over his refusal to recuse himself from election fraud cases or the January 6 insurrection cases due to his wife, Ginni Thomas, active interest in the matter.


Written ethics code

Unlike other branches of government, the Supreme Court has no formal code of conduct or ethics rules, and the Court has been resistant to having a written code of conduct stating that it is self-regulating and that an ethics code would interfere with the justices’ independence.

Several suggestions are being floated to ensure a high moral standard from the Supreme Court justices, and these include that the Supreme Court should impose a new code of conduct on itself, establish new standards for recusal from cases and establish financial disclosure rules in line with those that members of Congress must follow. Currently, Supreme Court justices only have to report annually any benefits they may receive, whereas Congress members must do so within 30 days. In the past, the Supreme Court, like found in other countries such as Pakistan, has cited its status as a separate branch of government and assured Congress that it is capable of policing itself.

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Coincidently, a few weeks earlier, new rules were set out for judicial employees regarding when to file a financial disclosure form with the U.S. Office of Government Ethics (OGE). All gifts and “personal hospitality” aggregating more than $415 in value, whether received by the judicial employee, their spouse, or dependent, should be reported. The instructions outline the types of information that must be disclosed, including sources of income, assets, liabilities, and transactions. It defines each category and specifies which types of assets and liabilities are “reportable.” The instructions also guide calculating the value of assets and liabilities, including fair market value, book value, and estimated value. However, the enforcement of these rules is done by the Supreme Court justices so in this case the scenario exists where the cat is being asked to guard the cream.

The American Bar Association recently passed a resolution calling for the justices to adopt a binding code of ethics. It recommends “clear and more stringent guidelines for recusal, prohibitions against conduct that creates an appearance of partiality, rigorous obligations for disclosure, and standards for transparent decision making.”

In particular, the model code would require justices to disqualify themselves from cases involving financial issues of family members. It would bar close family members from engaging in political or other activity that presents the appearance of partisanship. The latter has become more significant in American politics after the revelations of text messages shared between conservative activist Ginni Thomas and then Trump White House Chief of Staff Mark Meadows. In these messages, Thomas urged Meadows to fight to reverse the 2020 election results, raising concerns about partisanship.

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