All Supreme Court ethics lapses deserve scrutiny, including Sotomayor’s

Despite the best efforts of Chief Justice John Roberts, the U.S. Supreme Court is still the only court in the country that has never adopted a written ethics code. Although all nine justices issued a statement recognizing the “significant importance” of the Code of Conduct for United States Judges, adopted in 1973 by the lower federal courts, they have not always adhered to its requirements.

Because disregard for the code has not been limited to Republican or Democratic appointees, it is important for commentators to be even-handed in their assessments of the justices’ conduct. I have yet to see a meaningful critique of Justices Clarence Thomas and Samuel Alito in the conservative press, but any serious discussion of judicial ethics must nonetheless strive to remain apolitical.

Justice Sonia Sotomayor is much beloved by liberals, including me, but that does not mean she is never wrong. 

As an Associated Press investigation recently discovered, Sotomayor has frequently used her court staff to promote sales of her memoir and children’s books at speaking engagements and signing events, which violated basic principles of judicial ethics. Sotomayor nonetheless has her defenders who minimize or excuse her misuse of staff, seemingly more out of regard for the justice than an understanding of judicial misconduct.

In one instance, Sotomayor’s legal assistant informed the organizers of a signing at Clemson University that their order of 60 books was too few and that most schools requested “400 and up” for similar events. On another occasion, a Sotomayor aide told the host that an order for 250 books was “definitely not enough.”

Such assignments to staff plainly violate the Code of Conduct for United States Judges, which prohibits any substantial use of “chambers, resources, or staff” to engage in otherwise permitted outside activities. 

A formal advisory opinion from the Judicial Conference of the United States explains that asking law clerks for “one or two days” of research assistance would not ordinarily be substantial, but “the use of judicial personnel to assist the judge in performing activities for which extra compensation is to be received raises too great a risk of abuse to permit.” Sotomayor’s books have reportedly brought her at least $3.7 million in royalties.

To some admirers, however, Sotomayor’s staff use is a non-issue. Writing in the Washington Post, the Mississippi novelist Margaret McMullan recounted her recruitment of the justice to speak at the Mississippi Book Festival in August 2019, with the details coordinated by Sotomayor’s judicial assistant Anh Le. The justice was so undemanding that she declined offers to fly first class or take an upgraded hotel room. She did not even accept the $250 honorarium.

True, the festival ordered 1,500 copies of Sotomayor’s books, but there was no pushing by Le. Her only intervention was reminding McMullan to order some copies in Spanish. 

Sotomayor’s visit was delightful from beginning to end. She was an especially big hit with the children, leaving plenty of time for their questions, as she “spoke from the heart, walking up and down the aisles.” Sotomayor was so down-to-earth that she even helped McMullan carry her tote bag full of books.

Reflecting on her concern about the Supreme Court justices who have accepted lavish hospitality from billionaires, McMullan jokingly wonders (twice) if she had “bribed” Sotomayor into visiting Mississippi during the “hottest time of the year.”

Bribery, even humorously imagined, has nothing to do with it. There is no rule of judicial conduct that would prevent Sotomayor from traveling to book signings or other speaking events. She ethically could have accepted far more than the offered $250 (unless she had already hit the justices’ annual limit of about $30,000 on outside earned income).

The issue, well documented by the Associated Press, was Sotomayor’s use of court staff to bolster her book sales. That evidently did not happen for the Mississippi Book Festival, as McMullan describes it, but that does not mean it has never happened. After all, a large order for 1,500 books had already been placed before Sotomayor’s staff got involved, which has not always been the case.

There is a tendency on all sides to forgive or discount the ethical lapses of those we admire. Justice Thomas’s extravagant vacationing, and flouting of disclosure rules, thus draw yawns from Republicans. 

One of Thomas’s most visible current apologists is federal appeals judge Amul Thapar, whose book “The Peoples’ Justice: Clarence Thomas and the Constitutional Stories That Define Him” emphasizes Thomas’s ostensible bonhomie and common touch. Ironically, Thapar himself may have violated the Code of Judicial Conduct. While working on his own book, Thapar reportedly said during “emergencies” his five clerks would “volunteer” to assist him “day or night.” (Interestingly, Justice Alito, also the recipient of billionaires’ undisclosed largesse, has complained bitterly that no one has come to his defense.)

While violations differ in severity — dozens of undisclosed luxury junkets are far more serious than asking staff to boost book sales — judicial ethics principles must still be politically neutral, applied equally to the modest Justice Sotomayor, the affable Justice Thomas and the dour Justice Alito. We cannot fairly criticize our nemeses for conduct we accept among our own. 

Steven Lubet is Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law. He is the coauthor of “Judicial Conduct and Ethics” (fifth edition) and has written many other books.