The Ethics in Government Act of 1978 was enacted in the wake of the Nixon Watergate Scandal. By passing this act Congress sought to add a high degree of transparency about the activities of federal officials when they are not working. To this end the law created mandatory public disclosure of financial and employment history of public officials and their immediate family. The law also placed certain restrictions on lobbying by public officials after they leave governmental services. Congress believed that by requiring public officials to disclose certain information there would be a better chance to discover and police corruption and conflict of interests. Congress made it a crime to intentionally fail to disclose required information or to intentionally submit false or misleading information. This law makes governmental officials much more susceptible to public scrutiny. The Justices of the Supreme Court are also subject to this law.
Many experts question Justice Thomas’ compliance with the Ethics in Government Act of 1978 disclosure requirements. It appears that he and his wife have not disclosed certain transaction that the law encompasses. I do not believe that Justice Thomas can credibility claim that he did not understand the forms or how to complete them. Actually he has always conducted himself as if he was aware of the class of activities that are required to be disclosed. What is obvious from reviewing Justice Thomas’ submitted paperwork is that the parts that pertain to his wife’s activities contain glaring omissions as to her income and activities.
The Constitution of the United States gives each branch of government specific powers. The doctrine of separation of powers prevent the accumulation of power in any one branch of government. Legal experts and constitutional historians recognize Congress’ power to regulate and oversee the lower Federal Courts. The experts also agree that neither the Executive branch or Congress can exercise power of the Supreme Court. The language of the Constitution is clear:
Article III, Section 1 states the following:
“The judicial Power of the United States shall be vested in one supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.”
Supreme Court Justices serve for life and cannot be removed unless they commit an impeachable offense. No Supreme Court Justice has ever been removed by impeachment or otherwise. Even if it is determined that Justice Thomas has not fully complied with applicable financial disclosure laws, I do not believe that there exist the political will or consensus to remove him from office without him having been convicted of a crime. If the Justice Department does eventually investigate this matter, I do not believe that they would risk a constitutional confrontation by filing charges against a sitting Supreme Court Justice. A more likely scenario is that the Chief Justice of the Supreme Court would order Justice Thomas to comply with all disclosure laws. Justice Thomas might have to refill defective previous filings, but the matter would end there. It is very possible that Justice Thomas would argue in his defense that the doctrine of separation of powers prohibits another branch of government from investigating his compliance with relevant disclosure laws.
Justice Thomas should guide his out of court activities with the goal of instilling confidence in the Supreme Court as an institution. He should willingly follow all laws that can reasonably be argued apply to him while on or off the bench. I believe that Justice Thomas has never completely appreciated the high standard of conduct which is expected of him as a Supreme Court Justice.