As a young law student, I interned for a Boston Municipal Court judge. Over the course of a semester, I had a good experience doing legal research, drafting opinions, and observing the judge handle cases in a busy community court. As a thank you, I bought him a small gift: a mug from my law school’s bookstore. On the last day of my internship, I entered his office with the offering contained in a small gift bag. I told him this was a modest gesture for the mentorship he had provided.
The judge held up a hand. “Wait, Andrew,” he said. “Is this gift worth $50 or more? Because if it is, I’m afraid I can’t take it.”
I looked at him quizzically. “State conflict of interest law,” he clarified. Sheepishly, I told him it was just a mug, worth maybe 15 bucks. He sighed with relief, chuckled, and accepted it. I made a mental note to brush up on ethics law before purchasing gifts for judges in the future.
Massachusetts state law bars judges and most public officials from accepting gifts “of substantial value” — defined as $50 or more — for acts taken within their “official responsibility” as public servants. Violating the law by accepting such a gift can carry criminal penalties: a fine of up to $50,000, or imprisonment of up to five years.
I had this rule drilled into me later in my legal career, when I served as an assistant attorney general for Massachusetts. State officials are required to take a conflict-of-interest training and exam every two years. The most memorable part involved a hypothetical scenario in which someone offers you four Red Sox tickets as a thank you for your work on a case. Can you, a public official, accept the tickets without violating state ethics law?
The answer, of course, is no. As any warm-blooded Massachusetts resident knows, four Red Sox tickets are worth more than $50, and therefore constitute a “gift of substantial value.” Sorry, public employee — no Sox for you.
So I’ve been shocked to witness the ethics scandal unfolding at the US Supreme Court. Justice Clarence Thomas accepted vacations on private jets and yachts from a Republican donor, part of a reported $4.2 million worth of gifts he has received during his tenure. Justice Samuel Alito went on a luxury fishing trip to Alaska, paid for by a conservative billionaire who would later have business before the court. In several cases, the justices not only welcomed such lavish gifts, they failed to disclose them on mandatory public financial disclosure reports.
How can it be that the highest court in the land operates with such lax ethical rules, while the lowest courts in Massachusetts — such as city municipal courts — are held to the most stringent of standards? That Supreme Court justices may accept luxury vacations but municipal judges cannot accept tickets to a ballgame — and must cast a wary eye on mugs from the bookstore offered by hapless interns?
Amazingly, unlike thousands of Massachusetts state officials, the Supreme Court still has no binding code of legal ethics. The code of conduct it announced last year, in response to public criticism, notes that justices “should comply” with the Judicial Conference’s Regulation on Gifts, which puts certain limitations in place. But unlike Massachusetts state law with its criminal penalties, the court’s code has no teeth.
The Biden administration’s recent proposal to reform the Supreme Court calls on Congress to pass a law creating a binding ethics code, but the proposal is short on details. Thankfully, a new bill introduced by Democratic Representatives Jamie Raskin and Alexandria Ocasio-Cortez has more specifics. The bill, called the High Court Gift Ban Act, bars Supreme Court justices from receiving gifts valued at — you guessed it — $50 or more.
A skeptic might question whether such measures are effective — or necessary. Justices Thomas and Alito, for their part, have insisted that their work on the court was unaffected by the gifts they received, calling them “personal hospitality.” But the judicial branch’s very legitimacy rests on the public perception that judges are independent actors, unswayed by favors or the views of those who give them. The Supreme Court issues opinions — words on a page — and expects the public to follow them; it has no army to enforce its orders. So even if a judge can personally resist the influence of gifts and favors, that is irrelevant if the public views this behavior as corrupt — and increasingly, people do. Trust in the Supreme Court remains near an all-time low.
Massachusetts doesn’t always get it right. But when it comes to judicial ethics, the US Supreme Court should take a lesson from the Bay State and its honorable judges. And perhaps, in a world where the justices acted more like my old Boston Municipal Court judge, the public’s faith in the court might return. Luxury yachts? No. Bookstore mugs? Sure — so long as they’re less than $50.
Andrew Haile is an assistant teaching professor at Northeastern University School of Law. Send comments to magazine@globe.com.