Pittsburgh Post-Gazette

Can America trust the Supreme Court?

- Robert Barnes and Ann Marimow Robert Barnes is an editor at the Washington Post. Ann Marimow covers legal affairs for the newspaper.

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.

 ?? Ricky Cariot/The Washington Post i ?? Supreme Court Justice Samuel A. Alito Jr.
Ricky Cariot/The Washington Post i Supreme Court Justice Samuel A. Alito Jr.

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