INTERVIEW: Would You Like Fries With Your Nothingburger?

By Reuvain Borchardt

Ilya Shapiro discusses proposed ethics reforms of the U.S. Supreme Court,
and other legal issues in the news.

Shapiro is a senior fellow and director of constitutional studies at the Manhattan Institute. Previously, he was hired to be executive director of the Center for the Constitution at Georgetown Law — before being suspended, reinstated, and then resigning amid a public battle over a tweet questioning President Biden’s decision to limit his search for a Supreme Court nominee by race and gender. He was previously a vice president at the Cato Institute.

Shapiro has testified before Congress and state legislatures and has filed more than 500 amicus curiae briefs in the Supreme Court.

Earlier in his career, he was a special assistant/​adviser to the Multi-​National Force in Iraq on rule-of-law issues.

Democrats on the Senate Judiciary Committee recently passed a Supreme Court ethics bill. What would this bill do?

The legislation would require the Supreme Court to adopt a broader ethics code than it currently has and implement procedures to handle complaints of judicial misconduct. It would also mandate more disclosures for gifts, travel, and income received by the justices and their law clerks, and expand recusal requirements.

The impetus for this bill was reporting by ProPublica that Justices Thomas and Alito received gifts like vacations from wealthy people; and a Politico report that Gorsuch sold a property he co-owned to the CEO of the Greenberg Traurig law firm, which argues before the Supreme Court, shortly after he was appointed to the Court, after having been unable to find a buyer for several years.

Would these activities have been okay for a judge on a lower court, or for a member of Congress?

Members of Congress have strict rules because they always have power over someone — whether to benefit or punish — whereas judicial ethics rules reflect the need to disclose any potentially inappropriate relationships with parties that may come before them, so they can recuse if needed. The gifts of travel and hospitality to Justices Alito and Thomas were fully within the rules, given that the people in question didn’t have business before the Court and there’s no credible claim of a quid pro quo. (Full disclosure: Paul Singer is chairman of the Manhattan Institute’s board of trustees, while Harlan Crow’s wife Kathy sits on that board.) The Supreme Court amended its disclosure rules in March, so such hospitality would now need to be disclosed, but it’s still not a problem to receive — as it turns out many of the liberal justices have in recent years. As to the real-estate deal, that was an arms-length transaction where neither Justice Gorsuch (who had a 20% stake in the property) nor Brian Duffy knew who the other party was. There’s again no credible claim that Greenberg Traurig was trying to curry favor or otherwise give Gorsuch a sweetheart deal.

These breathless ProPublica investigations are complete nothingburgers. There’s no credible allegation that any justice did anything improper or behaved differently for having hung out with rich people, which they’re entitled to do.

AP reported that Sotomayor used taxpayer-funded court staffers to push book sales at public appearances.

Yes, using taxpayer-funded staff to push your book, or otherwise engage in private business ventures, is a problem. I’m not sure whether the Senate bill goes after that sort of thing, but it’s already not allowed.

There’s also the further issue of Justice Sotomayor not having recused from cases involving her publisher, from whom she’s earned millions. I don’t think she acted in any way that was corrupt, but she should have recused.

AP also reported that although justices are not allowed to engage in fundraising events, justices, including Thomas, Kagan, and Sotomayor, have been invited to speak at schools and then the schools invite donors to the events and private dinners with the justices, with the hope that the donor will then write a check to the school.

That’s not illegal, but it’s a bit of a gray area, because justices aren’t supposed to use the prestige of their office to raise funds. They are, however, allowed to be speakers at events hosted by all sorts of organizations, and they all speak at law schools. Justice Ruth Bader Ginsburg probably did more than anyone to create appearances of impropriety by headlining events and even receiving monetary awards from political and activist groups. I guess she was notorious in more ways than one.

What ethics rules are Supreme Court justices actually bound by, and did they make the rules themselves, or were they passed by Congress?

They’ve voluntarily adopted rules that mirror the code of ethics for lower-court judges. They’re supposed to report gifts over a certain amount, as well as their financial holdings. All that is so that they and the public can identify potential relationships with parties appearing before them that would trigger recusal obligations.

Are you okay with the Supreme Court not having the same strict ethics requirements as other government entities, and deciding ethics rules on its own? Or should there be more regulation from an outside entity like Congress?

I don’t think Congress can regulate this, because, unlike the lower courts, Congress did not create the Supreme Court. The Constitution created the Supreme Court, so congressional intrusion would raise a separation-of-powers problem. In any event, I’m not sure that tightening up ethics rules would prevent justices from giving speeches or hanging out with rich people, as they’ve always done, and isn’t by itself a problem.

There’s no allegation against any current justice that approaches anything close to the example of Abe Fortas, who was corrupt in mind-blowing ways. What we’re seeing lately is a campaign ginned up by the left to attack the integrity of the Court because they don’t like its rulings.

The initial allegations, by Pro Publica, were against conservative justices. But as we discussed, there also were stories about liberals Sotomayor and Kagan.

Yeah, the media have been kind of shamed into doing that a little bit. But certainly the bill pushed by Sens. Whitehouse and Durbin, which passed the Judiciary Committee on party lines, was not a response to that.

The bill is DOA, because it won’t get Republican support. But you believe that if it did pass, it would have constitutional problems anyway.

Yes. And, of course, ultimately, that could go to the Supreme Court — where there might have to be a unanimous recusal based on the obvious conflict!

That’s kind of like what’s going on in Israel, where the Supreme Court reform might ultimately wind up in the Supreme Court.

It could, I suppose, which, in that context, could lead to a constitutional crisis. Because if the Israeli Supreme Court is thinking about ruling that restricting its powers is unconstitutional, that’s dicey.

Even if the ProPublica and Politico articles were motivated by anti-conservative animus, and even if none of these activities by the justices were illegal besides Sotomayor’s allegedly using staffers to push book sales, are you bothered ethically by the substance of the allegations against Alito, Thomas, or Gorsuch?

Not at all. Judges have dealings with rich people all the time. And unless there’s some possibility of a quid pro quo — I give you something and you rule a certain way — there’s no issue.

Let’s switch gears now: Republicans are discussing impeaching President Joe Biden. Can a president be impeached for something he allegedly did while he was vice president, or between his terms as vice president and president?

You can impeach a president, or any executive official, for anything. Impeachment is an inherently political judgment. If someone is alleged to have done something seriously improper that, had it come out, the voters might not have elected him, that can be a consideration.

Do you believe, based on what you’ve seen so far, that Biden has done anything impeachable?

I don’t know. I don’t know what the full extent of the allegations are. Receiving money from corrupt foreign businessmen would be a problem, but we have to be careful not to attribute Hunter Biden’s sins to his father, who may have just been unreasonably giving his son the benefit of the doubt and not paying attention to what was going on. But really, Joe Biden’s official actions and abuse of executive authority concern me more than Hunter Biden’s shady dealings.

Last question: We briefly touched on the Israeli Supreme Court reform debate. What do you think of that?

I think Israel has been living under a juristocracy — a rule by the judges. The idea that the Court can invalidate a government action because it thinks it’s unreasonable, and without any standing requirements, is anti-democratic and anti-rule-of-law. So I’m in favor of the reforms that curtail the Israeli Supreme Court’s powers, as well as some of the other parts of the reform that have been proposed, like for judicial selection. The Israeli Supreme Court essentially picks its future colleagues; I prefer the American system, where there’s political accountability.

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rborchardt@hamodia.com