The US Supreme Court's ethics are called into question | The Excerpt

On a special episode (first released on June 13, 2024) of The Excerpt podcast: The U.S. Supreme Court has had its ethical compass called into question periodically over the decades, but not nearly as much as it is right now. From Justice Clarence Thomas’ recent disclosure of receiving millions of dollars in vacation benefits to Justice Samuel Alito’s admission of flying an American flag upside down at one of his homes, a politically charged symbol, the court’s integrity is under scrutiny and public faith in the court has dropped to its lowest level ever recorded. Can the public’s trust in this institution of American democracy be restored? USA TODAY Supreme Court Correspondent Maureen Groppe joins The Excerpt to put the court's recent ethical blunders into context.

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Hit play on the player below to hear the podcast and follow along with the transcript beneath it. This transcript was automatically generated, and then edited for clarity in its current form. There may be some differences between the audio and the text.

Dana Taylor:

Hello and welcome to The Excerpt. I'm Dana Taylor. Today is Thursday, June 13th, 2024, and this is a special episode of The Excerpt.

The US Supreme Court has had its ethical compass called into question periodically over the decades, but not nearly as much as it is right now. From Justice Clarence Thomas's recent disclosure of receiving millions of dollars in vacation benefits to Justice Samuel Alito's admission of flying an American flag upside down at one of his homes, a politically charged symbol, the court's integrity is under scrutiny and public faith in the court has dropped to its lowest level ever recorded. Can the public's trust in this institution of American democracy be restored? Here to help us dig into it is USA TODAY's Supreme Court Correspondent Maureen Groppe. Thanks for joining me, Maureen.

Maureen Groppe:

I'm happy to be here.

Dana Taylor:

Let's start with the recent news about comments Justice Samuel Alito and his wife Martha-Ann made at a Supreme Court gala. This was first reported in Rolling Stone and the conversations were secretly recorded by filmmaker Lauren Windsor. What did they say and why are those comments so problematic?

Maureen Groppe:

Well, Justice Alito questioned whether compromise between the left and the right is even possible, and he agreed with the filmmaker who was posing as a Catholic conservative to try to get him to be candid that the nation should return to a "place of godliness." As for his wife, she said she wanted to fly a religious flag in response to rainbow flags that are celebrating Pride Month, but she said her husband asked her not to. These secret recordings drew more attention back to the controversy about the flags that she has flown over their homes. And they also, again raised questions about how Justice Alito's personal views might affect his deliberations of the court.

Dana Taylor:

The Supreme Court's financial disclosures also just came out. What did we learn from the 2023 forms?

Maureen Groppe:

Yeah, the justices have to report annually on any outside income, gifts or travel that they received, and they also report their financial assets and liabilities in broad ranges. And some of the things we learned from the latest disclosures include that Justice Ketanji Brown Jackson received four Beyonce concert tickets and that Jackson and a number of her colleagues received hundreds of thousands of dollars in book royalties.

But what got the most attention was Justice Clarence Thomas's belated disclosure of two luxury trips he took in 2019 that were paid for by a major political donor, Harlan Crow. One trip was to an Indonesian island and the other was to an exclusive all male retreat in California.

Dana Taylor:

And why are these off the book contributions so problematic for the court?

Maureen Groppe:

Well, one reason they are is they only came to light because of an investigation by the news site ProPublica. After ProPublica published details of the trips last year, Thomas said that he hadn't been required to disclose them. He described them as "personal hospitality from a close friend who did not have business before the court". But Thomas now says that the trips were inadvertently left off his 2019 report, and that's why he amended that report to officially disclose them.

Dana Taylor:

Justice Alito has yet to file his disclosures. What do we know about his past disclosures?

Maureen Groppe:

He typically gets an extension on his annual disclosure report, but one thing we know is that like Thomas, he had a trip that he did not disclose previously. It was a luxury fishing trip from 2008. He was flown to Alaska on the private jet of a hedge fund manager who has repeatedly brought cases before the court. And this was another trip that was disclosed by ProPublica. After they did so, Alito said he had not discussed any cases with Paul Singer, the hedge fund manager, and he said his decision not to disclose the ride on Singer's jet was consistent with how his colleagues have "commonly interpreted the disclosure rules".

Dana Taylor:

Turning back to the flag controversy with Justice Alito, can you tell us what made the two flags politically charged?

Maureen Groppe:

There are two flags in question. One is an upside down American flag that flew over the Alitos' home in Virginia in January after the 2020 election. And the other is what's known as an Appeal to Heaven flag, which dates back to the Revolutionary War, but like flying the American flag upside down, it's been adopted by some Trump supporters, including some who carry the flag when they were trying to stop the certification of Biden's election on January 6th, 2021.

Dana Taylor:

Many have called for the justice's recusal from certain cases before the high court because of the flags. What's been his response?

Maureen Groppe:

Well, basically, Alito has said that the flags were flown by his wife, not by him. In fact, he said in the case of the inverted American flag that he told her to take it down, but she didn't do so for several days. And he's also said that these flags were not flown in support of the Stop the Steal Movement.

Dana Taylor:

What cases are before the court right now that this alleged bias would impact?

Maureen Groppe:

The court's deciding two cases related to the 2020 election and the January 6th attack on the Capitol. They're deciding if Trump can be tried for trying to overturn the election results, and they're deciding if an obstruction law can be used to prosecute many of the defendants who have been charged in the January 6th attack. And while that second case is not directly about Trump, it could have implications for his case because two of the four charges that he faces are based on the obstruction law.

Dana Taylor:

The controversy surrounding the Supreme Court's ethics really built to a head last fall in the wake of news that Justice Clarence Thomas, and to a lesser extent, Justice Samuel Alito hadn't been reporting all of the gifts they'd accepted over the years. How much money are we talking about here? And what form did these gifts take?

Maureen Groppe:

The amount of money is difficult to say because even when trips are disclosed, there's not much detail. But one advocacy group, Fix the Court, tried to come up with a number and the group estimated for the gifts that do have a disclosed monetary value, Thomas has received more than $2 million in gifts over the last 20 years, and that's about 10 times the value of the gifts received by his colleagues during that same time period.

Dana Taylor:

The response by the court was to announce its first ever code of conduct for its justices. That was implemented last fall. But some have argued that this code of conduct didn't go far enough in ensuring the court's integrity. Why is that?

Maureen Groppe:

Well, the main criticism is that the code does not have an enforcement mechanism. So for example, the justices decide themselves if they have a conflict of interest in a case and should not participate in that case. But nobody reviews that decision and can overrule it if they disagree.

Dana Taylor:

Why is restoring the public's faith in the high court so critical to its effective functioning?

Maureen Groppe:

Well, if the public doesn't have confidence that the court is fairly deciding cases, there's going to be less acceptance of those decisions. And various surveys show that the public's view of the court has taken a hit in recent years, both as these ethics issues have been raised and also as the court has been issuing some controversial decisions on abortion, gun control and several other issues.

Dana Taylor:

I want to pivot now to something you recently wrote about and that's how SCOTUS might end up keeping a newly elected President Trump out of jail if he wins the election. Can you explain how this could happen and what the ethical implications of such a move would be?

Maureen Groppe:

There's a provision of the Constitution called the Supremacy Clause, which essentially says that the federal government takes precedent over state and local governments. So if Trump were to become president again, the argument is that New York could not put him in jail for his conviction in the hush money case, and Georgia could not put him on trial for election interference because that would make it too difficult for Trump to carry out his duties as president. So that the punishment in any trial would have to wait until Trump leaves office.

Dana Taylor:

What's next for this topic of ethics with the high court? Are we expecting Congress to step in and force the issue?

Maureen Groppe:

Democrats are certainly under pressure to do something, but there's really not much that they can do without help from Republicans and they don't have any cooperation on this. So for now, they've just been trying to draw attention to the issue, whether that's in Congress or also on the campaign trail. They're hoping to make the Supreme Court one of the issues that voters will consider when they go to the ballot boxes next November.

Dana Taylor:

And then finally, Maureen, what are you watching out for next?

Maureen Groppe:

Well, I'm watching for these major decisions that we are expecting from the court over the next few weeks. They have a number of major decisions that they have not yet decided, so I'm waiting for those to come down any day now.

Dana Taylor:

Thank you so much for being on The Excerpt, Maureen.

Maureen Groppe:

Thanks for having me.

Dana Taylor:

Thanks to our Senior Producer Shannon Ray Green for Production Assistant. Our executive producer is Laura Beatty. Let us know what you think of this episode by sending a note to [email protected]. Thanks for listening. I'm Dana Taylor. Taylor Wilson will be back tomorrow morning with another episode of The Excerpt.