Some justices of the US Supreme Court are clearly bothered.
They’ve become quite vocal defenders of the court’s honor after it received well-deserved backlash over the increasing use of its “shadow docket” — rulings made without a full briefing or arguments — over the past 18 months that seems to have demonstrated the court’s rightward ideological shift. These orders, often issued at night, paved the way for a flurry of federal executions, expanded the scope of religious freedom claims against pandemic-related public safety rules, stopped President Biden’s effort to extend the pandemic eviction moratorium or end Donald Trump’s “Remain in Mexico” policy, and allowed a Texas abortion law that clearly violates Roe v. Wade to go into effect.
But they want you to know they are not “a bunch of partisan hacks,” in the words of Justice Amy Coney Barrett, speaking at a recent event.
During another speech, Justice Clarence Thomas said judges who veer into politics “are asking for trouble.” At another event, Justice Samuel Alito assured that the high court hasn’t been “captured by a dangerous cabal” of politically motivated fiends. Justice Stephen Breyer said in an interview that justices are “not politicians in robe.”
But if the justices are so concerned about the reputation of the court, whose Republican appointees now outnumber those selected by Democrats 2 to 1, there is a way for them to earn back the trust of the American people: Show us the money.
And now is the perfect time, as the court begins a term full of blockbuster cases on abortion rights, gun control, state secrets, and campaign finance reform.
Judicial reform advocates and a bipartisan group of lawmakers have urged the court and the US Judicial Conference, which governs the policies of all federal courts, to adopt stricter ethics rules that would require justices to more fully disclose financial ties, gifts, and other emoluments and would also require recusal when conflicted parties come before the court.
Currently, the Supreme Court justices essentially work on the honor system, exempt from the more stringent rules governing lower federal courts.
“The court has gotten used to behaviors that it now doesn’t like being called out on, and its response rather than to fix the behavior is to be thin-skinned,” said Democratic Senator Sheldon Whitehouse of Rhode Island.
Whitehouse wrote a joint letter with Republican Senator Lindsey Graham of South Carolina to Chief Justice John G. Roberts Jr. in February asking if the court had any plans to abide by a stricter code of ethics like those that bind federal lower-court judges as well as members of the legislative and executive branches.
“They said: Nothing to see here. We behave just like other branches of government,” Whitehouse said, paraphrasing the response.
But they don’t. And more is needed than the justices’ assurances that everything is totally aboveboard.
For example, Barrett made her denial of being a partisan hack at an event at the McConnell Center at the University of Louisville, named after Senator Mitch McConnell, who introduced the justice. McConnell’s strong-arming of the Senate judicial confirmation process, of course, is one of the reasons Barrett is on the court.
Barrett’s nomination was buttressed by a multimillion-dollar advertising campaign by Judicial Crisis Network, a conservative group that also set up a website and rapid-response team to support Barrett’s confirmation. That group’s president, Carrie Severino, also regularly litigates before the Supreme Court. The group doesn’t have to disclose its funders, making it a “dark money” operation. We literally don’t know who writes the checks they expect the justices to cash in the form of favorable rulings.
Barrett, like each of the other five GOP-appointed justices, also has close ties to the Federalist Society, the conservative legal institution that was the main architect of the Trump administration’s strategy to tilt the entire federal judiciary to the right — which was carried out with McConnell’s help.
It’s not just conservative justices who tend to show their ideological hands. Justice Sonia Sotomayor and the late Justice Ruth Bader Ginsburg had participated in events hosted by the American Constitution Society, which was founded as a liberal counterpart of the Federalist Society — a practice Whitehouse also opposes. But that group has been far less effective in inserting itself in the judicial confirmation process than its ideological counterpart.
The justices must put their ethics policies where their mouths claim to be. If the court and the Judicial Conference don’t act, Congress must. Legislation has been proposed by Democrats like Whitehouse and Republicans like Senator John Kennedy of Louisiana calling for greater transparency and accountability on the court. That’s the kind of bipartisanship that actually can restore some faith in government when the stakes could not be higher.