This past week, the Supreme Court handed down a series of major opinions on the powers of federal agencies, homeless encampments, and the January 6 storming of the Capitol. However, Americans have their own major opinions about the Supreme Court, particularly regarding the erosion of trust in the institution. According to Pew Research, trust in the Supreme Court has never been lower.
Most Americans disagreed with the Court’s decisions on abortion and unlimited campaign donations. Headlines about justices receiving gifts have further fueled public distrust. Investigations by ProPublica, The New York Times, and others revealed that Justice Clarence Thomas accepted more than $4 million worth of gifts from conservative billionaires. These gifts included destination vacations, private jet and helicopter flights, VIP passes to sports events, $150,000 in tuition money, and a $267,000 motor home. Justice Samuel Alito also faced scrutiny for a private-jet flight to a $1,000-a-night Alaskan fishing lodge, courtesy of conservative hedge fund owner Paul Singer, whose business later came before the Supreme Court at least ten times.
While it is legal for justices to receive gifts of meals and lodging, provided they publicly disclose them on a financial disclosure form, Alito and Thomas did not disclose these gifts until they were made public. Both justices deny any wrongdoing. Harvard Law School professor and retired federal judge Nancy Gertner commented, “These are not errors. These are, ‘I have a right to do this, and you can’t stop me.'” Gertner also noted that liberal judges have transgressed, too. For instance, Justice Sonia Sotomayor’s staff was caught aggressively pushing book sales at her appearances. However, Gertner emphasized that the dimensions of these actions do not remotely compare with what Justice Thomas has done.
The ethical dilemma extends to the spouses of the justices. Clarence Thomas’ wife, Ginni, attended the January 6 Trump rally and later texted Trump’s chief of staff Mark Meadows, encouraging him to fight to overturn the election. Samuel Alito’s wife, Martha-Ann Bomgardner, made news when The New York Times published a photo of an upside-down American flag flying outside Alito’s home in the days after the January 6 assault on the U.S. Capitol. Alito responded, “I had nothing whatsoever to do with the flying of that flag. … I asked my wife to take it down, but for several days, she refused.”
To Judge Gertner, it’s obvious that both Alito and Thomas should recuse themselves from cases involving the January 6 uprising. “The notion that one can say, ‘Well, it was my wife, wasn’t me,’ is flat-out absurd, and really casts doubt on his honesty,” she said. However, Robert Ray, a former White House Independent Counsel who represented Trump during the former president’s first impeachment, argued, “A justice’s spouse, just like anybody else, has a First Amendment right to be participating independently of the political process.”
The ethical dilemma confronting the Supreme Court and the United States is not new. In the 1960s, Justice Abe Fortas received $20,000 from a foundation. Although he returned the money several months later, the controversy led to his resignation from the Supreme Court. Georgetown Law School professor Cliff Sloan noted that the law states, “Any justice … shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” However, “reasonably” means different things to conservatives and liberals.
Robert Ray argued that a reasonable person would not question a judge’s impartiality regarding January 6 and Ginni Thomas’s activities. Meanwhile, Judge Gertner emphasized the importance of recusal based on the appearance of partiality. “You have to recuse yourself, based on the appearance of partiality. And that’s a concern, not that you actually are partial, but that it will appear that way to the public that you serve,” she said.
The lack of an enforcement mechanism for Supreme Court justices exacerbates the issue. Sloan pointed out, “There is absolutely no enforcement mechanism for Supreme Court justices right now. It’s just left up to each justice’s own determination about his or her own propriety.” Although all nine justices have signed a new Supreme Court Code of Ethics, each justice will continue to make their own decisions, and there is no other enforcement mechanism.
There are several proposals to address the Court’s trust problem, including term limits, increasing the number of justices, and appointing an inspector general to oversee the Court. Impeachment is also an option, but it would require bipartisan cooperation in Congress, which is unlikely.
According to Gertner, something has to change. “If the public doesn’t believe in the legitimacy of courts, then the fabric of the rule of law begins to become undone,” she said. Sloan warned that it could lead to massive defiance of the courts and civil unrest. Ray suggested that the Supreme Court is aware of the public’s attention and will conduct themselves accordingly in the future. However, Sloan believes that self-policing will never be enough, citing James Madison’s famous quote from ‘The Federalist Papers’: “If men were angels, government would not be necessary.”
The ethical dilemma confronting the Supreme Court and the United States is a complex issue that requires immediate attention. The Court must find a way to restore public trust and ensure that justices adhere to ethical standards. Without such measures, the legitimacy of the Supreme Court and the rule of law in the United States are at risk.
Source: CBS News, Pew Research, ProPublica, The New York Times, Harvard Law School, Georgetown Law School
