Today’s Pseudo–Ethics Outrage Would Not Happen if Justice Ginsburg Were Still on the Court

In a piece that stands out even by its own standard of tendentious analysis, Slate ran commentary by Steven Lubet entitled “Clarence Thomas’ Defenders Say He’s Just Like Ruth Bader Ginsburg” and explaining why “They’re wrong.” He has a point. While Thomas and Ginsburg both received personal hospitality (and properly disclosed it according to the long-standing rules that are now under attack), Ginsburg’s conduct raised far more red flags than his, including actual recusal violations. To equate the two wouldn’t be fair to Justice Thomas.

Lubet is focused on the lower octane issue of whether travel involving people who do not have matters before the Court constitutes gifts or reimbursements, even while conceding that he believes Ginsburg and her now retired colleague, Stephen Breyer, misclassified their own trips. He does not mention Ginsburg’s participation in 21 cases during the 1990s in which her husband (himself an influential attorney) had invested in companies involved in the litigation. That ran afoul of the federal recusal statute, though I have no doubt Ginsburg was unaware of the conflicts at the time. Lubet does not mention Ginsburg’s cozy relationship with groups that litigate contentious issues before the Court. That included lending her name to a lecture series co-sponsored by the NOW Legal Defense and Education Fund and signing a copy of her opinion for the Court in United States v. Virginia (the VMI admissions case) that NOW auctioned off. Among her other activities, she accepted an award from the Woman’s National Democratic Club and appeared on a panel with Bill and Hillary Clinton at another lecture series named for her. She was also given the Berggruen Prize for Philosophy and Culture, which entailed $1 million to be distributed to more than 60 charities of her choosing—and at her request, the full list of those recipients was not disclosed. These are just some examples that might have garnered interest from a media that presumably views itself as even-handed in the pursuit of innovative inquiries about judicial impartiality. Mark Paoletta has written more on this double standard regarding the departed justice (here and here among his recent pieces).

The fact of the matter is that the Thomas-focused pseudo–ethics issues in recent headlines would be unimaginable if Justice Ginsburg were still on the Court. And of course, these attacks were launched in the first place out of discontent with the Court’s recent landmark decisions. To be clear, I do not believe that either Ginsburg or any of her colleagues were or are corrupt. The recusal and disclosure issues of recent times, even when not misrepresented by shoddy journalism, have not involved actual corruption—justices ruling in favor of parties in the service of conflicts of interest of which they are aware. I do not believe a single vote or official action of any of these justices was changed as a result of their relationships with wealthy people or influential organizations. Just as many conservatives consider Thomas a hero, Ginsburg was a heroine to the left, and her status opened doors for her into society in ways the rest of us do not see. But those doors were opened because of her beliefs and opinions, not in order to change them. Still, for anyone interested in narrowing the scope of acceptable behavior by Supreme Court justices, Justice Ginsburg would be caught in the dragnet of the revised line-drawing before any of her colleagues of the last three decades.