The days when the U.S. Supreme Court was above public scrutiny have come to an end, and not a moment too soon. It took a steady stream of ethical boundary-pushing by justices and their spouses alike, not to mention a careening jolt to the right with egregiously rightwing decisions, but we’re finally there. Now the Court, Congress, and the White House have to catch up.
The Court will be the last of those institutions to step up. The Washington Post reported this week that a code of ethics for the justices has been bouncing around among them for “at least four years,” but they have not been able to reach consensus. All other federal judges are expected to adhere to a code of conduct, but the Supreme Court has exempted itself. Because it can.
The Post’s sources, “people familiar with the matter,” say that it is still an “active topic” within the Court, and that “the court’s legal counsel Ethan Torrey prepared a working document of issues for them to consider.” But they have no deadline for deciding what, if any, measures they should take to constrain their behavior. They are subject to a federal law that requires they recuse themselves from “any proceeding in which [their] impartiality might reasonably be questioned,” but they self-police, deciding for themselves if they should step back from a case before them. There’s little to no transparency from justices on the occasions that they do recuse, or perhaps more importantly, when they don’t.
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Take Clarence Thomas, who refused to recuse from cases surrounding Donald Trump’s election denial despite the very active role his spouse Ginni took in that fight, all the way up to Jan. 6. Not only has Thomas declined to recuse himself from numerous cases over the years in which the politically active Ginni was involved, for decades he failed to report her income from her political work with the Heritage Foundation, Liberty Central and other tea party-type groups.
And if you want to talk about Supreme Court spouse ethical issues, there are the partners of Chief Justice John Roberts and Associate Justice Amy Coney Barrett, both of whom are lawyers. Jane Sullivan Roberts is a high-powered headhunter for high-powered lawyers, for firms, and for individuals regularly appearing before her husband. Jesse Barrett’s law firm opened up a branch in D.C. in the months after her confirmation, where it has a raft of Fortune 500 and Fortune 100 corporate clients that regularly have litigation before the Court.
Like Thomas, neither Roberts nor Barrett have disclosed the full extent of their spouses work, their clients, even their income.
Then there’s Associate Justice Samuel Alito, who has become enveloped in the politically-driven evangelical movement. That involvement might stretch to leaking the court’s decision to members of political action groups. It certainly involves lots of fancy dinners and vacations and travel with these friends that he doesn’t report.
Then there’s the sham internal investigation the Court undertook to find the source of the leak of Alito’s decision overturning abortion rights. The investigation, which did not include the justices themselves, was signed off on by a friend of Roberts’, Michael Chertoff, who also happened to have received a seven-figure contract for “security” at the Court.
A so-far secret part of that report apparently revealed that Chertoff didn’t do much to improve internal security—protocols to secure the Court’s work are regularly ignored by justices, by clerks, and by other personnel.
So, yes, it’s about time the Court stop policing itself in utter secrecy. There needs to be transparency and accountability and it’s not just liberals saying it. The American Bar Association adopted a resolution this week urging the Court to finally adopt the code of conduct.
“An independent judiciary is the cornerstone of the rule of law and our constitutional republic,” the resolution reads. “It protects the liberty of the people. Yet public support for an independent judiciary can only be sustained if there is public confidence in the legitimacy of the judiciary. Public confidence requires that the public believe judges act ethically according to standards firmly grounded in judicial independence, integrity, and impartiality.”
The ABA came to this resolution over concerns that public confidence in the Court’s legitimacy has eroded. “If the legitimacy of the Court is diminished, the legitimacy of all our courts and our entire judicial system is imperiled,” the resolution said.
The Senate Judiciary Committee, in between its critical work getting those Biden nominees through, has the bandwidth to hold hearings on this issue. At the very least, it should hold hearings; at the most, it should advance existing bills “that create original, constitutional solutions for dealing with the lack of accountability at our nation’s highest court.”
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