fb-pixel Skip to main content

Confidence in the Supreme Court is cratering. It needs to adopt a code of ethics.

The court must address concerns about a conservative influence campaign — and find other ways to open up.

The Rev. Rob Schenck, who spent years at the center of the anti-abortion movement and led a secretive effort to influence Supreme Court justices, in Washington, D.C. on Nov. 15.Shuran Huang/NYT

The Rev. Rob Schenck had been arrested several times for blocking access to abortion clinics.

He helped pay Norma McCorvey, the woman known as “Jane Roe” in the Roe v. Wade case, to renounce her support for abortion rights.

During the 1992 presidential campaign, he plotted a stunt to thrust a plastic container containing a fetus at candidate Bill Clinton as he was leaving his hotel for a morning run.

He was too controversial, then — too high-profile — for the most ambitious campaign of his career: wending a way into the social lives of the Supreme Court’s most conservative justices in a quiet bid to steel them for uncompromising rulings.


So he trained a group of wealthy, conservative couples — whom he dubbed “stealth missionaries” — to do the work instead, approaching the late justice Antonin Scalia and current justices Clarence Thomas and Samuel A. Alito Jr. with invitations to private clubs and vacation homes.

“Operation Higher Court” succeeded in getting conservative activists face to face with the most powerful jurists in the country. And in one instance, Schenck alleged in a recent report by The New York Times, he even managed to get advance word, from Alito, on the decision in a landmark case focused on religious rights and contraception.

Alito denies tipping off one of Schenck’s couples in that case, known as Burwell v. Hobby Lobby. But the story of the alleged leak — and the shocking, far more public leak this spring of Alito’s draft decision in the Dobbs case that overturned Roe — has undermined trust in a high court that Americans already had good reason to doubt.

Over the past few years, an institution that could once claim some distance from the country’s partisan passions has become uncomfortably enmeshed in them.

In 2016, then-Senate majority leader Mitch McConnell turned the court into a vehicle for raw partisan politics when he refused to even consider President Barack Obama’s final nominee for the panel. Public cynicism hardened when President Donald Trump got to fill that vacancy a year later, name two more justices to the court, and eventually win a reversal of a half-century old federal right to abortion.


And revelations of Virginia “Ginni” Thomas’s role in the GOP’s effort to overturn the 2020 election have made matters worse, especially since her husband has actively participated in cases concerning the election and the Jan. 6 insurrection that followed it.

Public regard for the court has cratered. A June survey from Gallup found that only 25 percent of American adults have a “great deal” or “quite a lot” of confidence in the court, the lowest figure in nearly 50 years of polling on the question.

And because confidence is the only source of power for a court with no military or police force at its disposal, that’s nothing less than a crisis for the ultimate arbiter of American democracy.

There is no easy way out of that crisis. But there are some important steps the court could take now to rebuild trust.

First, it should adopt a binding code of ethics. At present, each justice is left to police himself or herself. And that has led to worrisome inconsistencies; some justices are more likely than others, for instance, to recuse themselves from cases where they might have a real or perceived conflict of interest.


If the justices don’t develop some clear ethical parameters on their own, Congress may try to impose some rules on them, leading to a separation-of-powers crisis that our struggling democracy can ill afford.

Opacity is a real problem, too.

After reporting on Schenck’s influence campaign appeared in Rolling Stone and Politico this summer, Senator Sheldon Whitehouse of Rhode Island and Representative Hank Johnson of Georgia wrote a letter to Chief Justice John Roberts demanding answers to a series of questions: Were any justices aware of “Operation Higher Court” before the press reports were published? Can you describe any dinners or other hospitality Schenck’s group, Faith and Action, provided for justices? Why didn’t any gifts from Schenck’s network show up on the justices’ financial disclosure forms?

The court has not been forthcoming. It must be.

And in a moment of deep distrust, Roberts and the rest of the justices should adopt other transparency measures, too. Start with a basic one: opening up the court to television cameras so the public can get a glimpse at what this often mysterious institution does. If the justices are worried about lawyers grandstanding for a national audience — a concern that shouldn’t outweigh the democratic interest in a more accessible proceeding — they could keep the oral arguments off camera and just televise decision days, when the country’s top jurists announce their rulings on some of the most important questions in national life.


The court should also consider making public the justices’ votes on which cases they take and which they do not. And it should create a rational system for making justices’ official records public once they retire. Some justices — public servants, paid with public funds — have withheld their papers for decades or even destroyed them. That is not how the world’s leading democracy should conduct its affairs.

Some opacity at the Supreme Court is necessary, of course. The justices should be able to deliberate in private before they render their decisions; that’s why the leaks in the Hobby Lobby and Dobbs cases were such a violation.

But with trust swiftly eroding both inside and outside the court, more transparency — where appropriate — is a vital step toward repair.

Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.