Can America trust the Supreme Court?
The Supreme Court returned to work yesterday with a major concern: how to convince the public that the justices take seriously their ethical obligations. Reports about some justices hobnobbing with billionaire friends on lavish trips and maintaining ties to those who have business before the court have become the elephant in the courtroom.
Justices across the ideological spectrum have said confidence in their decision-making is key to public acceptance of the court’s role as the final word on the law and Constitution. A new Gallup poll shows that just 41% of the public approves of how the court does its job. Only 23% of Democrats and 40% of independents say they approve of the court’s performance, compared with 56% of Republicans.
In recent weeks, Justices Elena Kagan and Neil Gorsuch have called on the court to implement Chief Justice John G. Roberts’ pledge to make “certain that we as a court adhere to the highest standards of conduct.” Doing so, Kagan said, “would, I think, go far in persuading other people that we were adhering to highest standards of conduct.”
Sensitive issues
This term, politically sensitive issues could again dominate headlines when the court completes the new term next June, less than five months before the 2024 presidential election.
Gun rights already are on the docket. The continued availability of the most commonly used drug to terminate pregnancies is almost sure to be reviewed. The issue of racial gerrymandering returns, and conservatives want to see additional limits placed on affirmative action. The court will take up laws passed in Texas and Florida restricting social media companies from removing certain political posts or accounts.
That’s not all. It would hardly be surprising to see issues arising from the prosecution of Trump in four separate criminal cases to rise to the high court. The justices could also be asked to consider whether his role in the Jan. 6, 2021, riot at the U.S. Capitol makes him ineligible to be on the 2024 presidential ballot.
But scrutiny of the court has concerned more than its cases. Reports from ProPublica detailed Justice Clarence Thomas’s relationship with billionaire business executives and his failure to disclose lavish trips and gifts over many years. The investigative news organization also reported on a free trip Justice Samuel A. Alito Jr. took, but did not disclose, to an Alaskan fishing resort with a billionaire hedge fund manager.
The reports, and investigations from other media outlets, have led Democratic lawmakers to back legislation that would impose ethics rules on the justices as strict as those that apply to members of Congress. Thomas and Alito have both said that under rules in place at the time, they did not believe they needed to report the free trips and private jet travel.
The court could adopt its own regulations, but members of Congress and constitutional scholars are split on whether the legislative branch could impose one on the justices.
Justices too close
Critics say that in some cases, the justices are too close to those who are bringing cases to the court. For instance, Democratic lawmakers have called on Thomas to recuse himself from a case challenging the power of federal agencies, long a target of conservatives concerned about what they consider unaccountable government bureaucrats.
In a lawsuit brought by herring fishers in New Jersey, the justices are being asked to overrule a long-standing doctrine that requires judges to defer to agency interpretations of federal law when a statute’s meaning is unclear. This deference to agency expertise was established in the 1984 decision Chevron U.S.A. v. Natural Resources Defense Council.
Justice Neil M. Gorsuch wrote in a dissent last year that the rule — known as Chevron deference — tips the scale in favor of the federal government in legal disputes and removes the court from its proper role of interpreting the law. He suggested it should be tossed aside.
Democratics defend the rule and say courts should rely on agency experts. Throwing out Chevron, they worry, could make it more difficult for agencies to carry out progressive policies to protect public health, the environment and consumers.
Thomas has been called on to recuse himself from the case after ProPublica revealed the justice’s attendance at a meeting of donors to the Koch network. The network has given millions of dollars to the Cause of Action Institute, the conservative legal organization representing the fishers. Thomas has not responded to calls for his recusal.
And Alito too
Separately, Alito has dismissed requests from Democrats that he recuse himself from an upcoming tax case because one of the attorneys in the matter interviewed him twice for articles that appeared in the Wall Street Journal editorial section. Alito used the interviews to defend himself and asserted that Congress has no authority to impose an ethics code on the high court.
Alito said in a statement that recusal was not necessary because the lawyer who co-wrote the articles “did so as a journalist, not an advocate,” and they never discussed the tax case.