The ethical quandary facing the Supreme Court (and America)
This past week, the Supreme Court handed down a series of major opinions: on the powers of federal agencies, on homeless encampments, and on the January 6 storming of the Capitol.
But when it comes to the Supreme Court, Americans have some major opinions of their own – that our confidence in the Court, the main tool it has to enforce its authority, has eroded.
It's true that, according to Pew Research, our trust in the Supreme Court has never been lower.
Most Americans disagreed with the Court's decisions on abortion and unlimited campaign donations, and then we got headlines about justices receiving gifts.
According to investigations by ProPublica, The New York Times and others, Justice Clarence Thomas has accepted more than $4 million worth of gifts from conservative billionaires, including destination vacations, private jet and helicopter flights, VIP passes to sports events, $150,000 in tuition money, and a $267,000 motor home.
And then there was Justice Samuel Alito's 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 10 times.
Now, it is legal for justices to receive gifts of meals and lodging, provided they publicly disclose the gifts on a financial disclosure form. But Alito and Thomas did not disclose these gifts, at least until they were made public. Both justices deny any wrongdoing.
According to Harvard Law School professor and retired federal judge Nancy Gertner, "These are not errors. These are, 'I have a right to do this, and you can't stop me.'"
Gertner notes that liberal judges have transgressed, too. Last year, Justice Sonia Sotomayor's staff was caught aggressively pushing book sales at her appearances. But Gertner said, "This is so totally different. The dimensions of that don't remotely compare with what Justice Thomas has done."
Then, there's the business of the spouses. Clarence Thomas' wife, Ginni, attended the January 6 Trump rally, and later texted Trump's chief of staff Mark Meadows, encouraging Meadows to fight to overturn the election. Citing Trump allies' claims of fraud, Ginni Thomas texted Meadows on November 19, 2020: "Make a plan. Release the Kraken and save us from the left taking America down."
Samuel Alito's wife, Martha-Ann Bomgardner, made news, too, 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 that involve 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.
But Robert Ray, a former White House Independent Counsel who represented Trump during the former president's first impeachment, said, "Oh now, come now! A justice's spouse, just like anybody else, has a First Amendment right to be participating independently of the political process. My impression has been that what most people are really upset about isn't so much the ethics of Supreme Court justices. What they really are concerned about is they don't like the outcome of particular cases that they really, really, really care about."
Pogue asked Gertner, "It seems like what Alito is saying is, 'You guys are just coming after me 'cause you don't like my decisions.' So, would the same thing apply if it were liberal judges?"
"It did apply!" Gertner replied. "Abe Fortas resigned from the court."
In the 1960s, Justice Abe Fortas received $20,000 from a foundation. "He actually had returned the $20,000 several months later, [but] when that came out, there was immediate, bipartisan condemnation of it," said Georgetown Law School professor Cliff Sloan, who has written two books about Supreme Court history. "This was such a controversy that it ultimately led to Justice Fortas resigning from the Supreme Court."
Here's what the law says: "Any justice … shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."
But "reasonably" means one thing if you're conservative, and something else if you're liberal.
Robert Ray said, "Would a reasonable person question the judge's impartiality, and I think with regard to January 6th and Ginni Thomas's activities, for example, I think the answer clearly is no." Meanwhile, Judge Gertner said, "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."
So, who breaks the tie? Who's the judge of the judges? Turns out, nobody!
Sloan said, "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."
But haven't all nine justices now signed a new Supreme Court Code of Ethics? Yes, said Sloan: "They signed a Supreme Court Code of Ethics. And they made very clear that each justice will continue to make his or her own decision, and there is no other enforcement mechanism. And that is just a gaping fundamental hole with the entire structure."
There are plenty of ideas for addressing the Court's trust problem. Maybe there should be term limits. Maybe there should be more than nine justices. Maybe an inspector general should oversee the Court.
And of course, there's always the nuclear option: Impeachment. Ray said, "If it's really a problem, and nobody's doing anything about it, there's a clear constitutional remedy: It's impeachment. That's the remedy, period."
But any of those proposals would require both parties in Congress to work together, and that's unlikely.
And yet, 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.
In Sloan's view, "It could lead to massive defiance of the courts and great kind of civil unrest."
But if Congress won't take action, where does that leave us? Ray says, just trust them; they've gotten the message. "People are paying attention now," he said, "and I think the Supreme Court knows that people are paying attention. I can imagine that in every one of those nine households, this issue inside the family has been discussed about how to conduct themselves in the future to avoid the problem."
But Sloan believes that self-policing will never be enough, noting, "James Madison, in 'The Federalist Papers,' famously said that if men were angels, government would not be necessary. And I would hope that somehow, everybody could step back from the current controversies, to restore respect and trust in the Supreme Court."
For more Info:
- Cliff Sloan, professor, Georgetown Law School
- Judge Nancy Gertner (ret.), senior lecturer on law, Harvard Law School
- Robert Ray, Zeichner Ellman & Krause LLP
- Supreme Court of the United States
Story produced by Gabriel Falcon. Editor: Ed Givnish.