The Supreme Court's Fiduciary Duty to Forgo Gifts
In Fiduciary Government (Evan J. Criddle, Evan Fox-Decent, Andrew S. Gold, Sung Hui Kim, & Paul B. Miller Eds., Cambridge University Press, 2018)
56 Pages Posted: 24 Apr 2018 Last revised: 19 Dec 2018
In this chapter of a forthcoming volume of essays on Fiduciary Government, Professor Kim calls for fiduciary limits on Supreme Court Justices’ acceptance of high value gifts. She cites an example in 2001 in which Justice Clarence Thomas reportedly accepted a bust of Abraham Lincoln, cast in 1914 by the neo-classical sculptor Adolph Alexander Weinman and valued at $15,000, as a gift from the conservative think tank and frequent filer of amicus briefs, the American Enterprise Institute. Practices like this, Kim maintains, are troubling. They raise questions about judicial integrity and impartiality, and they undermine the high levels of trust that citizens necessarily place in the Supreme Court. Professor Kim reviews the complex patchwork of civil and criminal statutes and regulations that could potentially apply to the receipt of gifts by Justices. She concludes that these laws leave loopholes through which high value gifts – even from litigants who will appear or regularly appear before the court – may be permitted and remain undisclosed. Kim also considers whether the Justices should be regarded as fiduciaries. In her affirmative answer, Kim argues that the purpose of fiduciary law is to protect and promote socially valuable relationships characterized by high levels of trust. Professor Kim concludes that a fiduciary duty to forgo gifts should be imposed on the Justices. She notes that the overriding concern to ensure the trustworthiness of fiduciaries usually entails rules requiring them to refrain from using their entrusted positions for self-regarding gain. A rule against accepting gifts is consistent with this standard of trustworthiness. Indeed, Kim argues that the extraordinary power vested in the Supreme Court and concomitant greater vulnerability of citizens raises the stakes for the trustworthiness of Supreme Court Justices. Having shown that there ought to be a fiduciary duty to forgo gifts, Kim concludes by explaining how the duty should be defined and implemented.
Keywords: Supreme Court, Justices, gifts, merchandise, hospitality, regulation, fiduciary, judicial ethics, trust, impartiality, reciprocity, norms, no-conflict rule, no-profit rule, prophylaxis, temptation, corruption
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