Corruption, Compliance and Conscience: A Glimpse Into Supreme Court Ethics Scandals

In 1919, as depicted in John Sayles’ 1988 film, Eight Men Out, eight players on the Chicago White Sox conspired to throw the World Series. Rumors and accusations dogged the team for over a year; the players were eventually indicted in October 1920. Amidst the scandal, Major League Baseball’s owners sought to tighten up the ethical hatches and appointed federal judge Kennesaw Mountain Landis as its first commissioner, with a mandate to clean up the sport.

The trial took place the following summer, where jurors heard testimony of the fixed games and allegations that organized crime had been involved. On July 29, 1921, all eight men were acquitted. The fallout for the accused men and for baseball was profound: Landis, who had been appointed as commissioner in 1920 when the scandal surfaced, banned all eight men from professional baseball — his first major act as commissioner, a clear attempt to renew the nation’s faith in America’s game.

Though Landis had accepted the commissionership, he also refused to relinquish his seat on the federal bench. The House of Representatives conducted an investigation into the matter, but Landis resigned from the courts before the process could be concluded and any possible impeachment process initiated.¹ Still, the controversy signaled the need for an ethical standard for judges. In 1924, the American Bar Association (ABA) organized a commission that was led by then Supreme Court Chief Justice William Howard Taft to create a set of guidelines for judicial conduct. These were known as the 1924 Canons of Judicial Ethics.

Among other guidelines, the canons exhorted judges to avoid impropriety, exhibit industry, and give the appearance of impartiality with regard to outside business interests. The guidelines served more as principles than strict rules and lacked any enforceable mechanism to uphold them.

Since then, the issue of judicial ethics has risen and fallen in the public consciousness, often in response to misconduct. One notable period of judicial scandal was 1968-1973, when the federal courts, including the Supreme Court, came under scrutiny for ethical lapses, most notably in the examples of Supreme Court Justices Abe Fortas and William O. Douglas.

Looking at these past moments of judicial turbulence can help provide insight into the current controversies plaguing the Supreme Court and other judicial bodies.

Abe Fortas

By the time of his appointment to the Court in 1965, Abe Fortas had already gained national renown due to his role in the Gideon v. Wainwright case, which held that anyone accused of a crime is guaranteed the right of legal counsel. Fortas and his firm took up Gideon’s defense when it reached the Supreme Court.

In 1969, Fortas came under fire for several reasons, including lying to Congress in 1968 during a failed effort by President Johnson to promote him to Chief Justice. Fortas testified that he had not advised the president since his appointment to the Court in 1965. But Fortas had advised the president, and in meaningful ways, including a case pending before SCOTUS. ²

Today, as evidenced by the reaction to Justice Samuel Alito’s recent meeting with President-elect Donald Trump in which the two men discussed the career of former SCOTUS clerk William Levi and his possible place in a new administration, the idea of a current Justice confiding in the sitting or imminent president on political issues, notably ones appearing before the Court, would spark controversy. In the Fortas case, however, the problem lay more in Fortas’s denial rather than his role as presidential advisor. After all, other Justices had consulted presidents, including Justice Felix Frankfurter, who often advised President Roosevelt on issues regarding national security and the economy, and Chief Justice Warren Burger, who regularly caucused with President Richard Nixon, even during the Watergate fiasco.

That said, Fortas had been warned. Former Justice Arthur Goldberg, who was Fortas’s predecessor, recalled cautioning Fortas about his proximity to LBJ: “Abe, while Felix did it, according to present reactions, people do not like a Supreme Court Justice being too close to the President.”³

More problematic for Fortas was the fact that he had accepted a lifetime annual payment of $20,000 for his work on the Wolfson Family Foundation run by the controversial financier Louis Wolfson. While Fortas eventually returned the payment and never collected the annual salary, he was deceptive about the annuity’s origins and his actions regarding it.

Fortas’s own reputation did not help. It was widely known that Fortas found pay at the Court unsatisfactory: “The financial circumstances of being a government clerk are oppressive and depressing,” he wrote to an acquaintance in 1966. ⁴

The Wolfson ties in particular led to calls for Fortas’s impeachment. Attorney General John Mitchell later admitted the Justice had not committed any crime, but his actions certainly violated the canons’ emphasis that “a judge’s conduct should be free of impropriety or the impression of impropriety.” ⁵ Fortas resigned rather than face impeachment. Journalist Anthony Lewis lamented Fortas’s fall in a letter to a friend. “That Abe Fortas would do this to Earl Warren and John Harlan and the others seems to me to go past insensitivity to indecency.” ⁶

His fellow Justices were not happy. Justice William Brennan grew so incensed at Fortas, he initially refused to invite him to his daughter’s upcoming wedding. Justice William O. Douglas, who had mentored Fortas as a professor at Yale Law School, lamented, “God, how did Abe do such a stupid thing?” ⁷ Even the Chief Justice abandoned Fortas. Warren publicly met with Attorney General John Mitchell in 1969. In the meeting, the Chief Justice acknowledged that though no law had been broken Fortas “can’t stay.” ⁸

The Fortas resignation resounded across the federal judiciary. Brennan resigned from teaching at New York University, stepped down from the Visiting Committee at SUNY Buffalo and Harvard Law School, liquidated his investments, and took numerous other steps to prevent any future controversies. ⁹ Douglas resigned from his position of the Albert Parvin Foundation less than two weeks later. Former Justices Tom Clark and Arthur Goldberg testified before Congress for the need to prohibit or limit Justices from receiving outside income from speeches, serving on boards, or teaching academic classes. ¹⁰

The lower courts also took notice. “The serious aspect about it all, is that the entire federal judiciary, and not Mr. Justice Fortas or the Supreme Court alone is under attack,” then judge and future Supreme Court Justice Harry A. Blackmun wrote to a friend at the time.¹¹

William O. Douglas

Fortas wasn’t the only Supreme Court Justice in trouble. Twice during the 1960s, members of Congress had called for Justice Douglas to be impeached, pointing to his four marriages and rumors of marital infidelity as reason enough, but neither led to Douglas’s removal. But then Fortas’s resignation emboldened the Nixon administration, and in 1969, Nixon’s allies — Senators Strom Thurmond and Barry Goldwater — demanded Douglas’s impeachment. ¹²

On April 15, 1970, House Minority Leader Gerald Ford brought charges to the floor. Though he included allegations regarding Douglas’s personal life and his association with a known pornographer, Ford went further, accusing the Supreme Court Justice of “having ties to organized crime, promoting rebellion on college campuses, and intentionally weakening the national security of the United States,” writes legal historian Joshua Kastenberg. ¹³

Ford had included three of the 34 ethics canons in his speech, but many of Ford’s arguments were based on Douglas’s moral failings. As legal analyst Brett Bethune notes, Ford measured “ethical propriety” not by the canons but instead through the “vague concept of ‘good behavior.’” Ford argued that Douglas’s failure to achieve this threshold resulted in diminished “public confidence in the Supreme Court.” Critics lobbed accusations that the impeachment effort was driven by political partisanship rather than a concern for constitutionality. ¹⁴

If Ford and Nixon believed the Justice would resign to avoid embarrassment as Fortas had, they were sorely mistaken. “Douglas had long been fractious, and his combativeness made him, unlike Fortas, determined to fight,” notes University of California Santa Barbara legal historian Laura Kalman. ¹⁵

With the impeachment attempt seen as political rather than constitutional, members of the legal academy rallied around the Justice. Douglas’s defense team consisted of a murderer’s row of D.C. operators, including former Douglas clerk and future Secretary of State Warren Christopher, former Attorney General Ramsey Clark, Truman and LBJ advisor Clark Clifford, and prominent trial lawyer and future federal judge Simon H. Rifkind.

Ford failed to muster full support among his fellow Republicans, and the opposition proved more formidable this time. Unlike in the Fortas case, liberals defended Douglas. Ultimately, the effort failed, and Douglas remained on the Court until retiring in 1975.

Courtroom Ethics, 1969-2024

Throughout its history, SCOTUS has fought attempts to impose a binding policy of judicial ethics on the Justices and instead adopted a general policy that places “each Justice as guardian of his own morality.” ¹⁶ When Congress made noises about imposing a code of ethics on the Court in 1969 following the Fortas debacle, Warren scrambled to have the Judicial Conference, the policy making arm of the federal judiciary, draft a binding set of canons rather than submit to one passed by Congress. The reforms included a ban on compensation from outside activities for district and circuit court judges if the Supreme Court would adopt a similar proposal.

Warren failed to even convince his fellow Justices to adopt the new code. Instead, when presented with it, the Court voted to postpone any decision on the matter until the following term. A letter from judicial ethics expert John Frank to Justice Hugo Black captures the general attitude pervading the Court on the subject: “I am so sorry that the Chief Justice felt required to wind up his career by attempting to forge a chastity belt for the judiciary.” ¹⁷

Eventually, arguing a lack of jurisdiction, the Judicial Conference rejected the newly drafted ethics policy. The Washington Post noted that whatever Warren’s power of persuasion, he was unable to “carry a Court majority for self-imposed reform.” ¹⁸

Three years later, the ABA again established a commission for reform, reducing the original 34 canons down to seven, and replacing the “shalls” or “musts” in its language to “shoulds.” The Judicial Conference adopted the reformed canons in 1973, but only for federal judges, and it again lacked any formal disciplinary process for enforcement.

21^st Century SCOTUS

For much of this century and the last, the Court’s stance on ethics has remained the same: opposition.

Controversies on the lower courts in the early 2000s led to accusations that the Judicial Conference and judicial councils were not policing ethics enough, often failing to pursue legitimate complaints. In 2004, Chief Justice William Rehnquist organized the Breyer Committee, chaired by Justice Stephen Breyer, to explore the issue. The committee’s report, published in 2006, found systematic problems regarding procedures for investigating complaints and recommended limited reforms to address the issue, which were later adopted by the Judicial Conference. ¹⁹

Five years later, in 2011, Chief Justice John Roberts, in the Court’s annual report, noted that the Justices do abide by the statutes regarding financial disclosure and disqualification requirements, but that their constitutionality has never actually been established. Roberts’s message being that because the Justices followed the Code of Conduct for U.S. judges, a separate ethics code was unnecessary. ²⁰

It wasn’t until 2023 in the midst of yet another ethics uproar that the Supreme Court adopted a binding ethics code for the first time in its history.

The fallout from the last 18 months of news coverage focusing on the largesse heaped upon some Supreme Court Justices by outside organizations and individuals certainly influenced the decision to adopt the code of ethics, but critics quickly pointed out that much like previous canons, the current one lacks any enforcement mechanism, a point Justice Elena Kagan acknowledged in 2024: “Rules usually have enforcement mechanisms attached to them, and this one, this set of rules, does not … however hard it is, we could and should try to figure out some mechanism for doing this.” Kagan suggested the Chief Justice appoint a committee of judges to review possible ethical violations.

If you’ve ever seen the Brian DePalma classic movie, The Untouchables, which recounts the F.B.I.’s efforts to bring down gangster Al Capone, perhaps you remember one of the movie’s final scenes. With the case against mobster Capone hanging by a thread as it appears the jury has been bribed, the judge, unmoved by allegations of jury tampering, lets the case proceed until Eliot Ness confides in him privately. After a moment we return to the courtroom where the judge, stonefaced, orders in a new jury to the outraged cries of Capone, “Is this justice?!” The district attorney turns to Ness and asks, “What did you tell him? Ness says, “I told him his name was in the ledger too,” a reference to Capone’s accounting of officials on his dole. “His name wasn’t in the ledger,” the DA responds. Had he been on payroll? Maybe, but the larger point is ethics isn’t just about actual corruption, but even its possibility. The legal environment, and even the notion, let alone actual evidence, of malfeasance within it, provides the societal water in which we swim — a point, of which the fictional judge was aware, that remains to this day.

Footnotes

1. Charles Gardener Geyh, “The Architecture of Judicial Ethics,” University of Pennsylvania Journal of Constitutional Law 23, no. 6 (December 2021): 2300.
2. Laura Kalman, Abe Fortas: A Biography, (New Haven, CT: Yale University Press, 1992), 313.
3. Laura Kalman, Abe Fortas, 313.
4. Laura Kalman, Abe Fortas, 322.
5. The Long Reach of the Sixties: LBJ, Nixon, and the Making of the Contemporary Supreme Court (Oxford University Press, 2016), 190, 218,, 196
6. Anthony Lewis to Ronald L. Goldfarb, May 7, 1969, Box[], Anthony Lewis Papers, Manuscript Division, Library of Congress.
7. Bob Woodward and Scott Armstrong, The Brethern: Inside the Supreme Court (New York: Simon & Schuster Paperbacks, 2005), 17.
8. Kalman, The Long Reach of the Sixties, 192-193; Earl Warren, interview notes by Anthony Lewis, September 18, 1970, BoxII: 43, Anthony Lewis Papers, Manuscript Division, Library of Congress.
9. Seth Stern and Stephen Wermeil, Justice Brennan: Liberal Champion (New York: Houghton & Mifflin Harcourt, 2010), 316-319.
10. Kastenberg, The Campaign to Impeach William O. Douglas, 69.
11. Josh Kastenberg, The Campaign to Impeach William O. Douglas: Nixon, Vietnam, and the Conservative Attack on Judicial Independence (Lawrence, KS: University of Kansas Press, 2019), 59.
12. Kastenberg, The Campaign to Impeach William O. Douglas, 7, 114.
13. Kastenberg, The Campaign to Impeach William O. Douglas, 7, 114.
14. Bethune, “Ethically Ignoring Impeachment Efforts,” 535-537.
15. Laura Kalman, The Long Reach of the Sixties, 243-44.
16. Kalman, The Long Reach of the Sixties, 199.
17. Kalman, The Long Reach of the Sixties, 198-199.
18. Kalman, The Long Reach of the Sixties, 198-199.
19. Geyh, “The Architecture of Judicial Ethics,” 2310, 2324.
20. Geyh, “The Architecture of Judicial Ethics,” 2310, 2324.