After Whitehouse Spotlights Loopholes, Federal Judiciary Announces Tightening of Personal Hospitality Exceptions, Strengthening Ethics Standards for Justices & Judges
Response to Whitehouse from Administrative Office of the Courts announces updates to judicial financial disclosure rules, bringing them in line with other branches of government. For years, Whitehouse has pushed to root out problems with our judiciary’s ethics practices to fight corruption and protect the public’s trust in federal courts
Washington, DC – U.S. Senator Sheldon Whitehouse (D-RI), Chairman of the Senate Judiciary Courts Subcommittee, today released a letter from the Administrative Office of the Courts that confirms the Judicial Conference of the United States has adopted new, stricter rules requiring far more disclosure of free trips, meals, and other “hospitality” accepted by federal judges and Supreme Court justices. The Administrative Office’s announcement comes in response to Whitehouse’s letter last month calling for these changes, which followed years of raising awareness about the personal hospitality loophole.
“The Judicial Conference’s updated rules on financial disclosure are a big step toward closing the loopholes that kept the public in the dark about who was paying for justices’ lavish lifestyles,” said Whitehouse. “These new rules will make it much harder for justices to travel, dine, hunt, or vacation for free at the private resort of a wealthy corporate executive – especially one with business before their court – and avoid disclosing that information to the public. I’m hopeful this rule is a harbinger of more ethics and transparency improvements to come for the Supreme Court.”
The Ethics in Government Act of 1978 requires certain government officials, including judges and justices, to complete financial disclosures each year. The Act includes limited exceptions to these disclosures, and allows each branch to define those exemptions more completely. Supreme Court practice followed financial disclosure requirements much weaker than other branches of government, especially with regard to the disclosure exemption for “personal hospitality.” Justices of the Supreme Court accepted undisclosed “personal hospitality” at resorts after arranging “personal” invitations from the resort owner, and did not disclose the gifts of hospitality. Because the gifts were not disclosed, it remains unknown whether the resorts also received undisclosed reimbursement from third parties. The effect was that the nation’s highest judicial officers were subject to the lowest standards of transparency of any senior officials across the federal government.
In the new letter, the Judicial Conference has now made clear that the reporting exemption does not apply to, among other things, gifts of hospitality at facilities owned by an entity, even if that entity is owned wholly or in part by an individual; gifts of hospitality paid for by any entity or individual other than the individual providing the hospitality or for which the individual is reimbursed; and gifts of hospitality extended at a commercial property. These updates will help bring the financial disclosure rules for judges and justices in line with those of other government officials.
Importantly, the Judicial Conference’s financial disclosure rules do not provide a carve-out for the Supreme Court, as other Conference regulations do. The Supreme Court admitted this in response to a February 2021 letter from Whitehouse and Senator Lindsey Graham (R-SC) on the personal hospitality exemption.
The Judicial Conference’s updated rules resolve some of the issues addressed by Whitehouse and Rep. Hank Johnson’s (D-GA) Supreme Court Ethics, Recusal, and Transparency (SCERT) Act. The SCERT ACT would require the Supreme Court to adopt rules requiring disclosure rules for gifts, travel, and income received by justices and law clerks that are at least as rigorous as the House and Senate disclosure rules, among other important provisions to bring basic transparency and accountability to the federal judiciary.
Whitehouse concluded: “There will be no more secret ‘personal hospitality’ at commercial resorts; no more secret ‘personal hospitality’ from resort owners the justices don’t know personally; no more secret ‘personal hospitality’ solely because the invitation was delivered ‘personally’; and presumably no more partisan companions with interests before the Court tagging along on secret, all-expense-paid vacations.”
Whitehouse has worked across the aisle for years to illuminate this problem, and has written repeatedly to both the Supreme Court and Administrative Office of the Courts on the issue. Whitehouse’s correspondence is below:
- Letter from Whitehouse and Senator Lindsey Graham (R-SC) to the Supreme Court (February 4, 2021). The letter states, “A legislative solution may be in order to bring the judiciary’s financial disclosure requirements in line with other branches of government if the Court does not address” its lax gift, travel, and “personal hospitality” requirements. The letter asked the Court to answer five questions, including its interpretation of “personal hospitality” for justices and judges and “[w]hat plans, if any” the Court has to adopt a code of conduct. [FULL LETTER]
- Letter from Supreme Court Legal Office to Whitehouse and Graham (July 12, 2021). The Supreme Court’s Legal Counsel responded to Whitehouse and Graham’s February 4, 2021 letter to say that the justices “comply with the same restrictions on gifts and outside activities that are applicable to the rest of the judiciary.” The Legal Counsel also responded that the Justices “rely upon” the lower courts’ Code of Conduct “in evaluating ethical issues more broadly.” The counsel failed to point to a binding, enforceable standard for Supreme Court justices, and gave no indication that the Court plans to adopt one. [FULL LETTER]
- Letter from Whitehouse to Courts of Appeals Chief Judges, the Administrative Office of the Courts, and the Committee on Code of Conduct (August 30, 2021). The letter asked each recipient to answer how the judiciary would assess a judge’s duty to disclose under the “personal hospitality” exception in various hypotheticals. Whitehouse for months received no response from any Circuit. [FULL LETTER]
- Letter from Whitehouse and Johnson to Courts of Appeals Chief Judges, the Administrative Office of the Courts, and the Committee on Code of Conduct (April 18, 2022). The letter, joined this time by Representative Johnson, noted that the members did not receive any reply to their August 30, 2021 letter, and repeated their requests from that letter. [FULL LETTER]
- Letter from the Administrative Office of the Courts to Whitehouse and Johnson (April 29, 2022). The Administrative Office of the Courts acknowledged that no specific guidance exists in response to many of the members’ hypotheticals on “personal hospitality,” and referred the matter to the federal courts’ Committee on Financial Disclosure. [FULL LETTER]
A PDF of the letter from the Administrative Office of the Courts to Whitehouse is available here.
Meaghan McCabe, (202) 224-2921
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