The Supreme Court is about to issue dozens of decisions that include hot-button political issues such as abortion, gun rights and a criminal case against Donald Trump — a treacherous path for an institution that has spent recent years navigating criticism of its decisions and judicial ethics.
The justices for the first time adopted a nonbinding code of conduct during their current term, in the wake of ProPublica articles that this week won the Pulitzer Prize for public service for revealing “how a small group of politically influential billionaires wooed justices with lavish gifts and travel.”
Those stories prompted Senate Democrats to advance for the first time a bill to spell out Supreme Court ethics and launch two committee investigations into alleged ethical lapses by Justice Clarence Thomas, while they contend the 6-3 conservative majority has issued decisions that aligned with Republican policy goals.
Over the last three years the Supreme Court has seen a consistent drop in its approval ratings, with polls by Gallup and Pew Research Center showing the court with as much as a historically high 59 percent disapproval rating.
Charles Geyh, a law professor at Indiana University who specializes in judicial ethics, is among legal experts who said public approval is uniquely important for a court that relies on other branches to enforce its rulings.
The court’s recent decisions overall have made it particularly vulnerable to ethics complaints, Geyh said, and the public is already primed to see the conservative-controlled court as acting on personal beliefs rather than impartial concerns of the law.
“What we’ve seen, I think, in the years leading up to this, was the court really being nose blind to how it was perceived and being insufficiently attentive to the fact that its legitimacy is at risk, because of the decisions it’s rendering,” Geyh said. “It’s perceived as a political body with an agenda which is diminishing its legitimacy.”
The court will issue rulings before the conclusion of the term at the end of June that could reshape the nation’s laws on abortion and other key issues where they have already caused a political splash, as well as other issues such as whether cities can criminalize homelessness, the tax powers of Congress, and whether former President Donald Trump is immune to federal charges.
Those high-profile cases stem from the court’s own prior decisions to overturn the constitutional right to an abortion and expand gun rights — or tie into some of the controversy surrounding the court.
Numerous advocacy groups, including Move On, also protested Thomas’ participation in the case about whether Trump is immune, which could have an outsize impact on the election if it determines whether Trump faces trial before voters go to the polls.
They pointed to the alleged involvement of Thomas’ wife, Virginia “Ginni” Thomas, in Trump’s efforts to overturn results of the 2020 election, which included her texting former White House Chief of Staff Mark Meadows about the election.
Josh Blackman, a law professor at the South Texas College of Law Houston, said most of the concern surrounding ethics is more about the cases on the court’s docket than any concern that justices themselves are biased.
“Frankly I think most of the posturing about ethics is trying to get conservative justices to disqualify themselves from cases; it’s not really about ethics,” Blackman said.
Entrenched
Gabe Roth, executive director of advocacy group Fix the Courts, said Democrats’ efforts, combined with public pressure, may have been what pushed the justices to adopt its own ethics code last fall.
“Whether it be introduction or even signing bills, without a significant push, left to their own devices, they’re not going to do much,” Roth said.
That 14-page code and commentary is the first formal code of conduct for the life-tenured members of the nation’s highest court. In a statement, the court said the document “largely represents a codification of principles that we have long regarded as governing our conduct.”
Legislation to enforce that or any other code has run into partisan opposition from Republicans who have critiqued the push as part of a broader attack on a conservative-controlled court.
That includes House Judiciary Chairman Jim Jordan, R-Ohio, who said last week he doesn’t want Congress involved in legislating the Supreme Court’s internal rules.
“What I definitely don’t agree with is the legislature imposing some kind of code on the court,” Jordan said. “I’m not for it. That’s the court’s call. I’m not for the legislative branch doing it.”
Among Republicans who did express concern about the justices’ behavior, they said they were satisfied with the code adopted last year by the justices, including Senate Judiciary Committee ranking member Lindsey Graham, R-S.C.
“I think the chief justice has done some things internally about the way the court handles ethical issues and I’m fine with that. The legislation that went along party lines is going nowhere,” Graham said.
Sen. Sheldon Whitehouse, D-R.I., one of the most prominent advocates of legislation concerning the Supreme Court, said that even though the code lacks an enforcement mechanism, he still sees it as somewhat of a victory.
“It’s backpedaling from their initial position, which was ‘Go away, nothing to see here, leave us alone,’” Whitehouse said, referring to a “statement of ethics principles and practices” that Chief Justice John G. Roberts Jr. published last April in the immediate aftermath of the media reports.
Whitehouse said that even if Congress does not advance legislation, there may be movement within the courts because of the public pressure.
Whitehouse and others pointed to a few changes the courts have made for financial disclosures in recent years, including one that came into effect shortly before the first ProPublica story about Thomas’ travel.
The Judicial Conference, the policy-recommending body for the federal courts, adopted a new reporting rule for travel and other hospitality gifts with a narrower exemption for what’s known as “personal hospitality,” for justices and judges.
Partisan issue
Retired federal Judge Jeremy Fogel, the executive director of the Berkeley Judicial Institute, said it’s “unfortunate” that Supreme Court ethics have become such a partisan issue, which has prevented the country from having a real discussion about how to handle the behavior of the justices.
“I think when you have questions arising about whether the justices are being ethical, it’s really in everybody’s interest that you have a framework in place that could deal with those kinds of concerns,” Fogel said.
Geyh said the code, which included commentary that focused on public perception of the court, represented more of an effort to slough off criticism than change the institution. Geyh, Roth and others pointed out the code did not include any enforcement provisions or stronger recusal standards that were included in legislation.
“I was among those saying, ‘for God’s sake, get a code, get a code, get a code.’ But when they did, they did it with an eye toward flipping off the world,” Geyh said. “It really just reinforced the notion that they do not have an established culture of having the code in mind as part of their way of thinking about the world.”
However, multiple experts said changes to the Supreme Court must walk a constitutional balancing act, aside from the partisan thicket surrounding them.
Roberts is limited in how many changes he can make without the signoff of the other eight members of the court, Fogel said.
“He really wanted it to be something that all justices could sign on to and I think that necessarily that it wasn’t going to be a super stringent code of conduct. It was going to be mostly aspirational,” Fogel said.
On top of that, Fogel and others said it’s an open question exactly how much sway Congress would have in passing new rules for the court. Justice Samuel A. Alito Jr. said in a rare public statement last year that Congress has no authority over the court.
Fogel said he thinks there is still more the justices could do to shore up public confidence. It could greatly help to bring in outside consultation, such as a committee of judges from the Judicial Conference, which is the policy recommending body for the judiciary, Fogel said.
“I think it would help the trust and confidence problem. I mean, you’re not going to solve it among partisans,” Fogel said. “Partisans don’t like the way the court’s ruling, and they’re not going to like the way the court’s behaving.”
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