How John Roberts can 'tap his inner LBJ' to 'dare his colleagues to dissent' to ethics rules: columnist

03 June 2023

The United States Supreme Court is facing historically low approval ratings and accelerating public distrust amid the docket of corruption scandals surrounding multiple jurists — including Associate Justice Neil Gorsuch and Chief Justice John Roberts — who is under mounting pressure to enact a code of ethics.

The starkest example of conflicts of interest, however, is the financial relationship between billionaire Nazi memorabilia collector Harlan Crow and Associate Justice Clarence Thomas, whom Crow has blessed with lavish gifts such as vacations and expense coverage throughout Thomas' judicial tenure.

At present, though, Roberts has expressed reluctance to directly police the behavior of his colleagues, stemming from his view that doing so could chip away at the Court's independence as a co-equal branch of the federal government.

But that need not be the case, according to Washington Post Associate Editor Ruth Marcus, who in a Friday opinion column suggested how Roberts could assert his authority and prevent further degradation of the Court's perceived legitimacy.

"As unnatural an act as it would be for the conflict-averse Roberts," Marcus said, he should mirror the approach that President Lyndon Baines Johnson employed when he appointed Senator Richard Russell (D-Georgia) to the 1963 Warren Commission that investigated the assassination of his predecessor John Fitzgerald Kennedy.

Channeling his "inner LBJ," Marcus explained, would provide Roberts the cover "to decide what the court needs to do and effectively dare his colleagues to dissent."

Marcus's recommendation came in two distinct parts.

The first is for Roberts to reclaim the narrative and put the justices on notice.

"Roberts should simply tell his colleagues that he plans to announce that the court will officially subject itself to the ethical standards that are binding on other federal judges. Period," Marcus said, adding that Roberts "should further name a committee — perhaps of retired judges — to consider what adjustments need to be made to tailor the ethics rules to the particular needs of the High Court."

Marcus' second idea would apply to Thomas in the short term while establishing an enforceable precedent for the future.

"Again, the LBJ model: Roberts should privately tell Thomas that he plans to announce he is asking the Judicial Conference of the United States, which reviews the justices' disclosure forms, to examine Thomas's past compliance," Marcus opined. "But, Roberts should say, this request would be much better coming from Thomas himself — a voluntary move to assure the public that the justice has followed the law."

Marcus' full editorial is available at this link (subscription required).

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