John Amis/AP Photo
Supreme Court Justice Sonia Sotomayor addresses attendees of an event promoting her children’s book ‘Just Ask!’ in Decatur, Georgia, September 1, 2019.
The justices of the United States Supreme Court have insisted time and again that they—unlike every other judge in the country—have no need for a formal code of conduct. They could not be more wrong. Investigations by ProPublica and CNN, for example, have uncovered Justices Clarence Thomas and Samuel Alito’s receipt of lavish gifts and favors, disregarding their financial disclosure, and perhaps even recusal, obligations.
The latest revelations involve Justice Sonia Sotomayor. According to a report by the Associated Press, Sotomayor’s staff “often prodded public institutions that have hosted the justice to buy her memoir or children’s books, works that have earned her at least $3.7 million since she joined the court in 2009.”
In one instance, a Sotomayor aide admonished the Multnomah County Library that the purchase of 250 books was “definitely not enough” for a scheduled event. On another occasion, Sotomayor’s legal assistant pointedly told her hosts at Clemson University that their requested purchase of 60 books was far fewer than the “400 and up” ordered by most schools. Similar “pushes” by court staff, as the Associated Press put it, occurred at the University of Wisconsin, Michigan State University, the University of California, Davis, and other venues.
Federal law places no limit on a justice’s royalty income, and many Supreme Court justices have written books and promoted sales at signing events. But bolstering sales through the efforts of Court employees—who are funded by taxpayers to perform official Court business—raises a serious ethics issue.
The Code of Conduct for United States Judges, applicable only to the lower federal courts, plainly bars conduct such as Sotomayor’s. Although the Code does authorize speaking and writing on “both law-related and nonlegal subjects,” it prohibits any substantial use of “chambers, resources, or staff” to engage in otherwise permitted financial activities. Moreover, the Code’s official commentary adds that the “publication of a judge’s writings [must] avoid exploitation of the judge’s office.”
Similar restrictions apply to members of Congress and the executive branch. The Standards of Conduct for the House of Representatives provide that staff and other resources may not be used for outside “business purposes.”
According to Chief Justice Roberts’s Annual Report for 2011, the members of the Supreme Court regularly “consult the Code of Conduct in assessing their ethical obligations.” Earlier this year, all nine justices signed a Statement on Ethics Principles and Practices recognizing the “significant importance” of the Code of Conduct.
Consultation with the Code, and recognition of its importance, has evidently been insufficient to assure compliance. Under the Code, Sotomayor’s use of staffers to enhance her book sales would have been clearly prohibited to every member of the federal judiciary, other than the justices themselves.
Remarkably, Sotomayor’s explanation, provided in an statement from the Court, says only that the Code encourages “extrajudicial activities such as speaking on both legal and nonlegal subjects,” without acknowledging the prohibition on using “chambers, resources, or staff” found only a few subsections later.
The rest of Sotomayor’s explanation is no better. “When she is invited to participate in a book program,” it says, “Chambers staff recommends the number of books based on the size of the audience so as not to disappoint attendees who may anticipate books being available at an event.” This is a virtual admission that Sotomayor assigned an assistant to track the size of her audiences in relation to book purchases, thus facilitating the optimum number of sales. That is a job for her hosts and publisher, not for Supreme Court staff.
Sotomayor has otherwise been exemplary regarding judicial ethics. The justices all adhere to the rule against participating in fundraising events at universities or other nonprofit organizations. Sotomayor has gone further, once declining even to share a meal with a major contributor following her talk at the University of Hawaii Law School. “The Code of Conduct for U.S. Judges provides that a judge ‘should avoid lending the prestige of judicial office to advance the private interests of the judge or others,’” her aide informed the law school administrators. “The Justice is fastidious about following this guideline.”
It is therefore disappointing that Sotomayor has not been equally fastidious about following other provisions of the Code. The late Justice Antonin Scalia was the author of many books, but he did not require assistance from his Court staff. A source close to Scalia has informed me that the justice “never used law clerks on [his] books, even just to verify quotations and citations.” Sotomayor’s failure to follow Scalia’s example is more proof, if any were needed, that the Supreme Court needs its own Code of Conduct.
