This past spring, the investigative journalism site ProPublica broke a major story about ethically questionable—and previously undisclosed—relationships between ultra-wealthy (and politically active) individuals and Supreme Court justices. The reports focused in particular on Justice Thomas and Justice Alito, two of the Court’s most conservative members. According to ProPublica’s reports, in 2008 Justice Alito accepted a luxury fishing trip—which involved flights on a private jet and a stay at a lodge that charges more than $1,000 a day—from billionaire Paul Singer, whose hedge fund often had cases before the Court, including a 2014 case in which Justice Alito did not recuse himself and voted in the hedge fund’s favor. With respect to Justice Thomas, ProPublica revealed that for years—starting shortly after he joined the Court—Justice Thomas has received substantial benefits from billionaire “friends,” including private plane flights, luxury vacations, VIP passes to sporting events, and private school tuition for his nephew (whom Justice Thomas has raised like a son). Most of these gifts came from right-wing billionaire Harlan Crow, who also purchased from Justice Thomas (in a previously undisclosed deal) the house where Justice Thomas’s mother and other members of his family lived, but Justice Thomas received substantial benefits from other billionaires as well.

Many critics denounced these gifts and other transactions as evidence of blatant corruption (see here, here, here, and here). Some even drew a connection  between the Court’s jurisprudence in corruption cases—which has embraced an ever-more-restrictive definition of corruption, often limiting it to quid pro quo deals—and the Justices’ own proclivity for accepting gifts, perks, and other benefits from people with a strong ideological (and sometimes personal) stake in the Court’s decisions (see here and here). Justice Thomas and Justice Alito vigorously defended their conduct (see here and here), though they did ultimately update their financial disclosure forms for 2022 (though not earlier years) to show additional benefits they had received, and to proffer some explanations. And the Justices’ supporters have accused the accusers of using these alleged ethical issues as a pretext for attacking Supreme Court Justices whom they dislike on ideological grounds (and overlooking similar ethical lapses by Justices whose ideology they prefer).

I have my own fairly strong views about this specific controversy, but I don’t want to go into that right now. I’m not sure I have anything to add—and I’m acutely aware that, whether or not one buys the charges of pretext and selective outrage—it is very difficult to talk about this issue without being influenced by (or perceived as influenced by) one’s views on Justice Thomas’s and Justice Alito’s jurisprudence and ideology. But even putting the specifics mostly to one side, I do think the fallout from ProPublica’s reporting implicates a more general issue—one that is very difficult, and that is relevant not only in the United States but in many other countries as well: To what extent can or should the other branches of government (the executive, the legislature, or—in the countries where such entities exist—an independent anticorruption commission) impose and enforce ethical rules on the highest court (the Supreme and/or Constitutional Court)?

The reason that I think that this question, at least when framed generally, is challenging is that it involves the potential collision of two values that many people (me included) think are essential for the rule of law: judicial independence and judicial integrity. Ideally, we would like courts that are not susceptible to improper influence (whether direct or indirect) from either political actors or private parties. The problem is that strengthening the tools that other government branches might use to investigate, expose, and punish judicial corruption could be used to threaten judicial independence. Conversely, the institutional mechanisms that might ensure judicial independence from the other branches could make it easier for lapses of judicial integrity to go unaddressed.

Now, to be clear, nobody (as far as I know) thinks that judicial independence requires judges to be immune from ordinary criminal processes. If a Supreme Court Justice takes a bribe (a suitcase full of cash, say, in exchange for a favorable ruling), then I suspect that pretty much everyone would agree that the principle of judicial independence would not justify absolute immunity from prosecution. But there are all sorts of gray-area cases—gray either because the conduct is maybe-but-not-necessarily corrupt, or the evidence of misconduct is not clear enough to justify criminal prosecution—where there really is a question whether some sort of investigation or sanction is appropriate. On the flip side, I think most people would recognize the clear threat to judicial independence that would arise if the chief executive or a simple majority of the legislature could discipline or remove judges for vaguely-specified “impropriety” or “neglect of duty.” But limiting the ability of the other branches to take action against judicial misconduct to those cases where the conduct is clearly criminal may make it extraordinarily difficult to police even quite egregious ethical lapses.

For this reason, I think that designing a system for policing judicial ethics, particularly for a jurisdiction’s apex court(s), is much more challenging that is sometimes acknowledged, especially when those courts are important political actors in their own right, with decisions that are the source of significant controversy and contestation. Whether or not the defenders of Justices Thomas and Alito are correct when they accuse the critics of using alleged ethical lapses as a pretext to attack jurists they dislike on ideological grounds, it is not unreasonable to worry that anticorruption allegations against judges could in some cases be ideologically motivated (even if the allegations have merit), and that the threat of investigations—even if they come to nothing—could be used to influence judicial behavior. Likewise, whether or not the critics of Justices Thomas and Alito are correct that these lavish gifts had the intention and possible effect of influencing judicial decisions, it is not unreasonable to worry that wealthy private interests could corrupt the judiciary in this way. It would be nice if we could trust the judiciary to police itself—to adopt its own sufficiently strict code of ethics, take primary responsibility for investigating allegations of misconduct that fall short of criminal offenses, and impose appropriate sanctions on judges found to be in violation. But if the ProPublica revelations and their aftermath have taught us anything, it’s that we can’t always depend on the judiciary to police itself.

So, what to do? I’m afraid this is going to be one of those posts that raises a problem without offering anything resembling a constructive solution. I suspect that the right response depends a lot on the circumstances of an individual country—the right approach to judicial ethics in the United States may be quite different from the right approach to the same basic issue in France or India or Brazil or Moldova. But as of now I don’t really have any clear ideas about how to handle this issue in my own country, let alone elsewhere. I do think it would be helpful if we raised and discussed this problem more explicitly, though. And I’d be interested if any readers have insights to share on how their own countries, or countries in which they have expertise, have handled this challenge.