Marian: Income Taxation And The Regulation Of Supreme Court Justices' Conduct

Omri Y. Marian (UC-Irvine; Google Scholar), Income Taxation and the Regulation of Supreme Court Justices' Conduct, 110 Cornell L. Rev. __ (2025):

Last year, investigative journalists reported multiple instances where billionaires showered Supreme Court Justices with lavish gifts. Previously undisclosed luxury fishing trips, private jet travels, and yacht cruises, ignited popular and scholarly debates about Congress’s role in regulating Justices’ conduct. This article explains how income taxation can, and should, be used to regulate judicial misconduct where rules of judicial conduct fail.

The article shows that in some instances income tax already serves as a backstop to rules of judicial conduct. Under current law, some of the “gifts” reported in recent press stories are likely taxable income to the Justices. If so, the Justices should have reported these amounts on their income tax returns and paid income tax on them. If the Justices indeed do so, many of the concerns raised in public and scholarly discourse on Justices’ conduct are mitigated. If the Justices did not report and pay tax on certain gifts, they should be audited, and be subject to the same consequences as any other taxpayer who fails to properly report income and pay taxes.

The article also explains that in some instances income taxation is a better regulatory instrument than rules of judicial conduct. Some commentators (and a few of the Justices) argue that congressionally imposed limits on Justices’ gift receipts are unconstitutional. There is no such problem in the context of income taxation. Congress is clearly within its constitutional authority to require, and in certain cases current law already demands Justices to report certain receipts on their income tax returns. Congress can also expand income taxation laws to capture even more transfers to Justices.

Moreover, even if laws directly regulating judicial conduct are valid, the consequences for Justices for failure to adhere to these rules are minimal. Not so in the context of income taxation. Failure to report income may carry significant civil, and even criminal consequences. As such, income tax offers a very potent threat against Justices for failing to disclose certain receipts.

The article also considers several tax law reforms – all within Congress’s constitutional power – to further improve income taxation to regulate Justices’ conduct. Specifically, the article offers to deny income tax exemption for any gifts received by Justices, to consider annual public disclosure of Justices’ tax returns, and to mandate annual audits of Justices’ tax returns.