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The Supreme Court absurdly still lacks a binding ethics code, unlike lower federal courts. Fortunately, there's a simple practice the justices can adopt immediately. It's called the smell test (also known as common sense).
The idea is featured in a New York Times opinion piece by federal judge Michael Ponsor, who asks: “What has gone wrong with the Supreme Court’s sense of smell?”
Referring to the federal judiciary, the senior jurist in Massachusetts wrote in his Friday piece, “Much depends on this small cohort’s acute sense of smell, its instinctive, uncompromising integrity and its appearance of integrity.” Noting the barrage of reports spotlighting ethical lapses on the Supreme Court, he concluded that “some of our justices are, sadly, letting us down.”
Those reports suggest it’s the Republican-appointed justices who are struggling with this concept the most — namely Justice Clarence Thomas and, as more recent reporting revealed, Justice Samuel Alito.
Indeed, a paragraph in Ponsor’s piece didn't name justices but rather, almost comically, listed a bunch of things that clearly reference Thomas and Alito (and, to be sure, the recent report about Justice Sonia Sotomayor’s book promotion):
The recent descriptions of the behavior of some of our justices and particularly their attempts to defend their conduct have not just raised my eyebrows; they’ve raised the whole top of my head. Lavish, no-cost vacations? Hypertechnical arguments about how a free private airplane flight is a kind of facility? A justice’s spouse prominently involved in advocating on issues before the court without the justice’s recusal? Repeated omissions in mandatory financial disclosure statements brushed under the rug as inadvertent? A justice’s taxpayer-financed staff reportedly helping to promote her books? Private school tuition for a justice’s family member covered by a wealthy benefactor?
But even if the judge is speaking generally, it’s more than notable that he’s taken the step of making this commonsense plea to the court — and the country. (He disclosed in the piece that he got ethical clearance to write it — an epic meta point of its own.)
If there won't be a formal ethics code for the Supreme Court, the justices still need "functioning noses," Ponsor wrote.
Because the justices — Thomas and Alito, at least — apparently need examples, Ponsor provides them in his piece.
He relayed an anecdote from his time as a young judge when he was offered Red Sox baseball tickets by a local attorney. “Like the much more expensive seat on the private jet used free by Justice Samuel Alito on his Alaska vacation,” the judge recalled the seats “would probably go empty if I didn’t take them. Who would be harmed?”
But describing the smell test in action, Ponsor wrote:
I became aware of an aroma of something off. Not an actual smell, of course, but something like that — something like a whiff of milk on the verge of going sour or a pan left on the stove too long. It wasn’t that the lawyer had evil intent; it was that I was approaching a boundary. Silently gnashing my teeth, I turned the tickets down.
Of course, Alito did not take a similar approach to his free ride on the jet of conservative billionaire Paul Singer, who would later have business at the court from which Alito didn’t recuse. In fact, Alito sided with Singer's interest along with a lopsided majority of his colleagues. In a desperate Wall Street Journal opinion piece last month that followed ProPublica's reporting on Alito's Alaska excursion, the justice argued he didn't know Singer was connected to the case at the time and wouldn't have had to recuse if he did.
Alito and Thomas could learn from their lower-court colleague’s higher ethics.