With all eyes on the Supreme Court as it considers cases central to the future of U.S. democracy, institutional integrity at the Supreme Court is more important than ever. That’s why the alleged ethics violations at the Court are so troubling – something the Supreme Court itself appeared to recognize when it adopted a code of conduct, its first step towards addressing its self-made crisis of institutional legitimacy, in 2023. This is a critically important project for an institution built entirely on public trust. However, the new code is unenforceable and filled with provisions that would likely allow the justices to continue the same behavior which led to the series of scandals that landed the institution in this position in the first place. And for anti-corruption experts, that is not surprising. In fact, it was a predictable outcome of the Court’s rulings in cases defining political corruption under the law.

In a series of cases decided over the past 37 years, the Supreme Court has systematically gutted the country’s public corruption laws, including by undermining the long-standing “honest services” doctrine. At its core, the honest services doctrine is an anti-corruption principle protecting the people’s right to an honest and impartial government and a fair provision of government services. Officials, in government or in other positions of authority, who misuse their positions to enrich themselves deprive the people of that right and are subject to federal wire and mail fraud charges.

Taken together, these rulings formalized the idea that money moving from private hands to official pockets is not illegal in itself. According to the Supreme Court, the conduct is unlawful only when there is some tangible clear official action to which an exchange of money or property can be obviously tied.

The Supreme Court’s decision in United States v. McDonnell is perhaps the most salient example. In McDonnell, the Supreme Court overruled the honest services wire fraud and Hobbs Act extortion convictions of former Virginia Governor Bob McDonnell. The convictions obtained against McDonnell and his wife Maureen were supported by evidence of bribery and hung on a key element of that statute, 18 U.S.C. § 201(b): whether the benefactor intended to influence an “official act.” His benefactor testified that he had given gifts worth more than $175,000 in loans and luxury goods, including flights on a private jet, a Rolex watch, and $20,000 worth of clothing for McDonnell’s wife (including designer dresses and a full-length white leather coat), to the McDonnells in order to obtain the governor’s help with testing a nutritional supplement developed and marketed by his company. The government also showed that McDonnell used the power of his office to arrange meetings for his benefactor with McDonnell’s subordinates in the Virginia government designed to encourage Virginia university researchers to initiate beneficial studies; promoted the benefactor’s products to doctors at exclusive events held at the Governor’s Mansion; and facilitated other meetings with state research universities that would help his benefactor initiate research studies to benefit his business. Given the evidence underlying the verdict, the government clearly established a pressure campaign on the part of McDonnell towards other Virginia government officials.

Despite this evidence, a unanimous Supreme Court overturned McDonnell’s conviction by defining “official act” so narrowly that prosecuting run of the mill corruption has become nearly impossible. Bribery, the McDonnell Court said, only occurs when the official takes an action on a matter that is “focused and concrete” and “involves a formal exercise of governmental power,” like ruling a particular way on a case. According to the Court, arranging meetings or attending events, like McDonnell had done, are not by themselves an “official act.”  In spite of the donor’s testimony and clear evidence that McDonnell repeatedly requested his subordinates and other government officials meet with his benefactor, knowing that the meetings were being held in pursuit of state-funded research studies to benefit his benefactor’s business, the Court found the jury instruction to be improper after engaging in an exhaustingly-detailed textual analysis of “official act.”

Even before McDonnell, the Court had severely limited the honest services doctrine in Skilling v. United States, by deciding that the “intangible” right to honest services required a very tangible exchange of money or property from a person to an official for some precise action as part of a bribery or kickback scheme. And in United States v. Sun-Diamond Growers, a case with facts eerily reminiscent of those uncovered in recent Supreme Court ethics scandals, the justices significantly limited the reach of another public corruption law, the illegal gratuities statute, 18 USC § 201(c), in similar fashion. 

In Sun-Diamond Growers, the Court overturned a conviction against a trade association for giving then-Agriculture Secretary Mike Espy $5,900 in illegal gratuities–including items such as tickets to the 1993 U.S. Open Tennis Tournament and thousands of dollars of luggage and meals. The unanimous Court interpreted that statute to apply only to situations where officials accept or are given gifts “for or because of some particular official act.” Until Sun-Diamond, the government could establish an illegal gratuities violation by showing that a gift was based on the official’s position; but after Sun-Diamond, prosecutors were required to establish a “link between a thing of value conferred upon a federal official and a specific ‘official act’ for or because of which it was given.” Based on this analysis, gifts or money, even when they’re given by an advocacy organization to an official explicitly in charge of regulating that advocacy group, are not problems in themselves; rather, they only become problematic when they are linked to a very specific set of actions.

As a result of these cases, which Professor Ciara Torres-Spelliscy discussed in some length in a 2019 article in the Harvard Law and Policy Review, the Court conveyed the clear message that access to government officials and access to government power more broadly is for sale – that public officials can be inundated with extravagant gifts, loans, and other benefits as a “normal” part of how the government operates.

Seen in this light, the Court’s philosophy toward corruption helps inform our understanding of its inability or unwillingness to improve its own ethical responsibilities: if a governor can arrange for his staff and subordinates to meet with a businessman in exchange for $175,000 in opulent luxury gifts and loans, then it may seem perfectly fine for a justice to take all-expenses paid $500,000 vacations on billionaires’ private yachts and accept hundreds of thousands of dollars in other unreported gifts, including private jet travel from wealthy benefactors.

The Court’s rulings have helped promote a radical vision of a government filled with powerful people, who are seemingly unaccountable despite taking unlimited gifts, loans, and other benefits from individuals who seek access and influence. It has helped foster a culture of corruption and impunity in the halls of power.

But this is not a lost cause. The Court’s disastrous anti-corruption jurisprudence is based on statutory interpretation, and Congress can step in to change the U.S. legal and political landscape. Advocates have been working with Congress for decades to reverse the Court’s decisions in the public corruption cases –including in a new bipartisan bill from Reps. Angie Craig (D-MN) and Nancy Mace (R-SC) that would strengthen the definition of “official act.” We are also witnessing a real movement to apply these principles to Congress itself, as it wrestles with legislation to prohibit members from trading stocks. With the country’s eyes squarely on the ethical missteps of sitting Supreme Court justices and congressional stock dealings, Congress has a generational opportunity to counter the negative impact of McDonnell, Sun Diamond, and Skilling. By strengthening U.S. public corruption laws to prevent government officials from abusing their public offices for private gain, Congress can help restore public trust in all three branches of government – but most importantly in our Supreme Court.

IMAGE: The U.S. Supreme Court Court in Washington, D.C., U.S. Photographer: Stefani Reynolds/Bloomberg