Supreme Court associate justice Clarence Thomas “faces growing ethics questions,” The Hill‘s John Kruzel reports, “after recent reports of his wife’s aggressive effort to overturn former President Trump’s electoral defeat and participation in the Jan. 6 ‘Stop the Steal’ rally have renewed scrutiny of the justice’s refusal to step aside from related disputes that have come before the Supreme Court.”
Meanwhile, under pressure from a public beginning to notice the striking correlation between membership in Congress and a sharp eye for the best investments, Democrats in the House and Senate have introduced bills to ban members and their families from buying and selling stocks while in office.
The overlap of these two sets of ethics problems — a judge’s possible prejudice in favor of his spouse’s views and affiliations versus an elected official’s potential ability to trade (or have a spouse or child trade) stocks based on inside legislative scoop — is the family angle. That creates a third ethics problem running in the other direction.
Virginia Thomas isn’t her husband. She’s neither a Supreme Court justice nor an employee of the federal government. She’s thus presumptively entitled to engage in whatever kind of political speech and advocacy, and affiliate with whatever political organizations, she pleases.
The spouses and children of congresspeople are, likewise, not themselves congresspeople. If they want to invest their money in stocks, bonds, cryptocurrency or losing bets on the Kansas City Chiefs to beat the Cincinnati Bengals (yes, I’m still sore about that), it’s their money and nobody’s business but theirs.
It’s one thing to impose restrictions and guidelines on people who have sought and accepted particular jobs. They agree to those restrictions and guidelines as part of the deal.
It’s another thing entirely to assume such authority over people who haven’t even sought, let alone been offered or accepted, such employment and who, especially in the case of children, may not have even been consulted on the matter of the other person’s political or employment ambitions.
The former makes sense. The latter is just … well, unethical. And while not doing it just because it’s unethical doesn’t solve those other two problems, neither would doing it.
Suppose that the spouses of Supreme Court justices were forbidden to endorse candidates, donate to or work for campaigns, hire on at political organizations, etc. Does anyone believe that such restrictions would stop Virginia Thomas from expressing her opinions to her husband over dinner, or that those opinions would have any less (or more) an effect on his rulings?
Suppose that the spouses and children of congresspeople were forbidden to invest in particular companies. How would that stop those congresspeople from trading their insider information for, say, future “revolving door” employment opportunities, or just having old law school buddies, sisters-in-law, etc. do the investing for them?
For obvious reasons, Virginia Thomas shouldn’t be allowed to argue before the Supreme Court while her spouse sits on it, and Justice Thomas should recuse himself from any cases that represent a plausible conflict of interest due to her affiliations.
Likewise, members of Congress who get caught using their privileged access to information for insider trading, even through proxies, should be punished.
But trying to run these family members’ lives isn’t an ethical, or effective, solution to the problems involved.
What, short of eliminating all these government positions (which I favor), might constitute such a solution? How about a constitutional amendment reserving such positions to unmarried, childless individuals?
That seems like a hard proposal to sell our politicians on. And, as the history of the Holy Roman Catholic Church demonstrates, it comes with its own set of equally intractable problems.
The imperfect, but probably better, solution: Rigorous investigation and harsh enforcement of conflict of interest and insider trading violations where government officials themselves are involved.
Which we’ll probably get about the time flying pigs taxi for their takeoffs from the frozen surface of hell.
Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.