He followed strict rules as a judge and wants Supreme Court justices to do the same
Updated May 9, 2023 at 10:51 AM ET
A growing list of reports spotlighting several Supreme Court justices' lack of disclosure of high-cost gifts, expenses and business dealings — from luxury trips to real estate deals to private school tuition — has prompted many to call for ethics reform at the nation's highest court.
Among them is retired federal Judge J. Michael Luttig, a widely respected conservative judge who served on the U.S. Court of Appeals for the 4th Circuit from 1991 to 2006.
Luttig was a Supreme Court contender under President George W. Bush and a longtime friend of several conservative justices. He famously sent more than 40 of his clerks — nicknamed "Luttigators" — into Supreme Court clerkships during his tenure, the vast majority of whom worked for Justices Antonin Scalia and Clarence Thomas.
Luttig has become an increasingly vocal critic of the Republican Party — and some of his high-profile proteges — in recent years.
He advised former Vice President Mike Pence in the lead-up to the Capitol insurrection, telling Pence that he did not have the constitutional authority, as then-President Trump insisted, to reject the Electoral College vote and give the election to Trump; he also testified at a House Jan. 6 committee hearing last June.
In it, he wrote that Congress "indisputably has the power under the Constitution" to prescribe ethical standards for the Court, if it were to fall short of what he described as "the housekeeping that is necessary to maintain a Republic."
"The Supreme Court should want to lead by the example that only it can set," he wrote. "It should want to conduct itself in its non-judicial activities in all ways such that it is beyond reproach."
At the forefront of the current controversy are payments from Republican megadonor Harlan Crow to Thomas, which the justice did not disclose. Thomas said in a statement he "was advised that this sort of personal hospitality from a close personal friend, who did not have business before the Court, was not reportable."
On Tuesday, chair Sen. Dick Durbin, D-Ill., and other committee Democrats sent letters to Crow and the holding companies that own his private jet, private yacht and an Adirondack Great Camp, asking them to answer a list of questions — including about the full extent of their gifts to and transactions with Thomas — by May 22.
"This information will help identify specific shortcomings in the 'Statement on Ethics Principles and Practices,' as well as current law, that legislation needs to address," the lawmakers wrote.
Luttig told Morning Edition's A Martinez that there's no question the ethical questions surrounding the court — along with some of the questions raised by its recent judicial decisions — have been "immensely damaging," at least in the short-term.
"The Supreme Court doesn't have either the purse or the sword, it only has its judgments," he says. "And its power is ultimately in the respect that its judgments command and the respect that its conduct earns from the American people."
Luttig says it's high time for the high court to adopt a stronger code of conduct. After all, he says, serving on the federal bench comes with big privileges and responsibilities — and he would know.
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Luttig says the mounting ethical questions facing the Supreme Court today present a valuable opportunity to "fashion standards of conduct for itself that it probably has long needed and, as of today, should definitely want."
The Supreme Court is the only judicial body in the U.S. that isn't governed by a formal code of ethics, though it is subject to some federal statutes that impose ethical standards on all federal judges.
U.S. Chief Justice John Roberts has said the Supreme Court seeks to abide by the code of conduct that lower courts follow, but cannot use that as a definitive source of guidance because "it does not adequately answer some of the ethical considerations unique to the Supreme Court."
Most federal judges are beholden to the Code of Conduct for United States Judges, which was adopted by the Judicial Conference of the United States (a policymaking body established by Congress) in 1973. It includes five canons guiding judges' decision-making when it comes to things like public appearances, political activity, potential conflicts of interest and performance of job duties.
Luttig says the Supreme Court could easily adopt and apply those standards to itself, adding that "it would require little or nothing by way of time or resources."
He stresses how important it is for federal judges to avoid even the possible appearance of impropriety. During his own years on the bench, he declined to accept "any form of hospitality." Luttig says he wouldn't have accepted tickets to a baseball game, even if he were to pay for them later.
"I believe that federal judges should essentially live like priests or saints or monks," he adds.
"The collegiality that you enjoy on the federal bench is really only among your colleagues on the federal bench. As soon as you step beyond that you are at risk of associating with people who could well have matters that come before you or who might well have an interest in the cases that come before you, financial or otherwise."
The broadcast interview was produced by Chad Campbell and edited by Olivia Hampton.
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