The US supreme court is an extraordinarily exclusive club. The nine members are unelected and employed for life, or until they step down voluntarily. And, as in many exclusive clubs, the membership likes to keep things just as they have always been.
Tradition has its merits, of course, but recent events clearly show that change is urgently needed.
The court, shockingly, is not bound by a code of ethics as lower courts are. Federal laws about financial disclosures, for example, do apply to them, but there is no clear method of enforcement.
The remedy, a bad one, apparently is that these justices are so wise that they will police themselves. Clearly, that doesn’t happen, or not effectively enough.
More proof came this week when the excellent investigative news outlet ProPublica revealed that, in 2008, Justice Samuel Alito took a trip to Alaska on the private jet of hedge fund manager and Republican donor Paul Singer – a trip that likely would have cost more than $100,000 if arranged independently.
But Alito never disclosed the trip. What’s worse – and perhaps entirely predictable – Singer’s businesses were involved in several supreme court cases over the next few years, and Alito didn’t recuse himself.
He’s being blasted for it in some corners, and so is the court. Rightly so.
“The billionaire who paid for private jet rides and luxury fishing trips for Samuel Alito also bankrolled the groups funding the plaintiffs in the student loan relief case,” complained Sawyer Hackett, a senior adviser to Julián Castro, the former San Antonio mayor and Obama cabinet member. (Two lawsuits have challenged the legality of President Biden’s $400bn student loan forgiveness plan; the supreme court is expected to rule on it within weeks.)
And Hackett asked the obvious question, given that reality: “How can this court be considered legitimate?”
The answer is that it can’t be, until the court gets its house in order. The Alito revelations come on top of recent ProPublica reporting about Justice Clarence Thomas’s ethical lapses – specifically his acceptance of financial favors from Texas billionaire Harlan Crow, another Republican donor. Crow made tuition payments for a member of Thomas’s family, paid for lavish trips and participated in a dubious real estate deal involving the home that the justice’s mother lived in.
Sadly, these justices aren’t the only ones behaving badly: the Wall Street Journal’s editorial page agreed to publish Alito’s defensive statement, in an op-ed, about the ProPublica revelations before the investigative article had even run. (Alito wouldn’t comment on ProPublica’s reporting when he was given the opportunity before publication.) Call it a “pre-buttal”, and one that lacked even a basic level of journalistic solidarity on the part of the Journal’s opinion side. Thought experiment: what if, say, the Washington Post’s editorial board had allowed Elizabeth Holmes to pre-empt John Carreyrou’s investigation for the Wall Street Journal that exposed the fraudulent practices of her blood-testing company, Theranos (her crimes sent her to federal prison last month).
What’s to be done about these persistent judicial ethics lapses?
“When a potential conflict arises, the sole arbiter of whether a justice should step away from a case is the justice him or herself,” ProPublica noted.
That’s not nearly good enough.
For years, good-government groups and thinktanks have been advocating for change.
In 2019, the well-respected Brennan Center for Justice, in an extensive report, urged the court to voluntarily adopt a formal ethics code, rather than wait for Congress to impose one. It also called for the court to explain justices’ reasons for recusal, in order to provide more transparency, and to strengthen its informal – and all-too-weak – practices governing gifts and financial disclosures.
All good and necessary ideas. And it would be ideal for the court to get to work on all of that.
But since there seems little appetite to do so, it’s left up to Congress to do it for them. Checks, balances and all of that.
Today’s supreme court is extremely powerful, increasingly political and decreasingly trusted. It’s never been more obvious that ethics reform needs to happen now.
Margaret Sullivan is a Guardian US columnist writing on media, politics and culture
