The first few weeks of 2025 have made the urgent need for ethics reform at the Supreme Court painfully clear. First there was the decision by the Judicial Conference to pass on investigating multiple questionable actions by Supreme Court Justice Clarence Thomas. Then, Justice Samuel Alito made the curious decision to take a call from the president-elect as Donald Trump’s emergency appeal was barreling toward the court.
As has been well-reported, there is a long list of apparent ethical failings by certain members of the court over the last two years — mostly Justice Thomas but also Justices Alito and Sotomayor. The reports have been shocking: luxury yacht vacations, salmon fishing in Alaska, private plane travel, a recreational vehicle, private school tuition, use of court staff to help sell books, and more. Not surprisingly, public respect for the courts is plunging. A recently published Gallup survey found that public confidence in America’s courts is down by 24% from 2020, to a historic low of 35%.
The New York City Bar Association recently issued a lengthy report calling for a mandatory and enforceable code of ethics for the Supreme Court, which we helped co-author. But one need look no further than the perversely disparate treatment of two federal judges to appreciate the urgent need for reform.
Justice Alito was either too tone deaf to see – or simply didn’t care – that he was being used.
Aside from his call with Trump, according to published reports, Justice Alito may have violated both the laws governing the receipt of gifts and those governing recusal. He faces no risk of consequences, however, because the court’s ethics rules are neither mandatory nor enforceable. Senior United States District Court Judge Michael Ponsor, on the other hand, like all lower court judges, can be sanctioned for violating the mandatory Code of Conduct that applies to him –and he was –for simply calling attention to Justice Alito’s failures. Kafka could hardly fashion a system more in need of repair.
Decades ago, Congress passed ethics laws that apply explicitly to Supreme Court Justices. Those laws are mandatory, not optional. They govern the receipt and disclosure of gifts and set standards for recusal. Yet, Justice Alito shrugs them off, asserting that “Congress did not create the Supreme Court” and “[n]o provision in the Constitution gives them the authority to regulate the Supreme Court — period.”
Last year, what critics have called the Court’s “imperial” attitude was on display when Justice Alito refused to step aside from three cases involving the legality of President Trump’s actions surrounding the Jan. 6 insurrection. The justice had permitted an upside-down flag – a symbol of the Stop the Steal movement – to fly outside his home after the attack on the Capitol. This symbol of apparent support for the insurrectionists might sensibly have prompted Justice Alito to recuse himself from the Jan. 6 appeals because federal law requires a justice to step aside whenever his impartiality “might reasonably be questioned.” But when the flag-flying incident came to light in early 2024, Justice Alito rejected calls to step aside. In his view, the recusal statute does not bind the Justices, and he announced his decision to sit without citing or discussing governing federal law. Chief Justice Roberts was seemingly so alarmed by the appearance created by Justice Alito’s continued participation in the Jan. 6 cases that, according to news reports, he took the unprecedented step of taking back from Justice Alito the assignment to write the majority opinion in one of them.
Which brings us back to Judge Ponsor. A well-respected former Rhodes Scholar appointed by President Clinton, Judge Ponsor is an outspoken proponent of Supreme Court ethics reform. In response to the upside-down flag incident, Judge Ponsor wrote an opinion piece headlined, “How could Justice Alito have been so foolish?” His comments echoed the thinking of many Americans and were, in many ways, more valuable because they provided a judicial perspective on the incident. “To put it bluntly,” he wrote, “any judge with reasonable ethical instincts would have realized immediately that flying the flag then and in that way was improper. And dumb.” As he put it, “Courts work because people trust judges. Taking sides in this way erodes that trust.”
Judge Ponsor’s entirely sensible essay prompted allies of Justice Alito to object—not to the validity of Judge Ponsor’s criticisms, but to his voicing them at all. Their complaint was investigated by an appellate court judge, who concluded that Judge Ponsor had improperly “expressed personal opinions on controversial public issues and criticized the ethics of a sitting Supreme Court justice.” Judge Ponsor was disciplined last month for making statements that “diminish the public confidence in the integrity and independence of the federal judiciary.”
The irony of this episode is rich. Judge Ponsor was sanctioned for his speech, something ordinarily protected by the First Amendment, while Justice Alito’s actions remain immune even though they could well have been viewed as diminishing public confidence in the judiciary and could have subjected Justice Alito to discipline – if only there were an enforceable code of ethics for Supreme Court justices. But, again, there isn’t.
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The nine members of the Supreme Court are the only judges among more than 30,000 state and federal judges in the United States not bound by an enforceable code of ethics. The voluntary Code of Conduct the Supreme Court adopted in response to public outcry in 2023 is no answer. It ignores the ethical standards written into law by Congress and relies entirely on nonbinding admonitions about how the justices “should” behave, leaving the justices free to pick and choose among them. It was this toothless Code that Justice Alito cited in refusing to recuse himself from the Jan. 6 cases.
Unlike Justice Alito, Judge Ponsor accepted the criticism of his commentary and offered an “unreserved apology.” The final lines of his apology underscore, perhaps intentionally, the gaping difference between the ethics standards governing the lower courts and the Supreme Court. “I am proud to participate in a judicial system that gives members of the public an avenue to identify potential violations of the Code and that gives me an opportunity to recognize any misstep, apologize, and amend.” Of course, the ethical system that makes Judge Ponsor proud governs only lower court federal judges.
After two years of steady criticism of apparent ethical lapses by some justices, it is more than distressing that Chief Justice Roberts’ annual report on the judiciary, issued at the end of December, contains not a word on the subject. Without action by the court, or Congress, this story has no end. Alito’s call with Trump was reportedly to reassure Trump that a former Alito clerk would indeed be a Trump loyalist if hired to the administration, notwithstanding his prior work for the now distrusted former Attorney General Barr. The request for a call should have raised red flags and its timing should reasonably have caused Justice Alito to recuse himself from Trump’s emergency application. But that was not to be.
Donald Trump is hardly known for personally checking the references of his nominees, let alone a nominee whose work for the justice was more than a decade ago and who had more recently and relevantly served in a senior role in Mr. Trump’s Department of Justice. And setting aside the sentencing appeal, Trump can surely anticipate frequent appearances before the court in the coming years. His call can reasonably be seen as an excuse to maintain some form of personal relationship with one of his most loyal supporters on the ourt, and to be able to brag about that relationship with others. Justice Alito was either too tone deaf to see – or simply didn’t care – that he was being used.
As Judge Ponsor might say about this latest act of questionable behavior – if only he were not muzzled – “You don’t just stay inside the lines; you stay well inside the lines. This is not a matter of politics or judicial philosophy. It is ethics in the trenches.” And so, on we go, seemingly doomed to repeat the mistakes of the past.
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