The Supreme Court’s reputation is plummeting. The decline is driven partly by the view that the court is politicized as well as by the justices’ dismissal of existing laws that are applicable to them.
The court has refused to adopt the Code of Conduct that binds other federal judges, albeit adapted to recognize the court’s unique position. Congress has been urged to enact a code, but partisan divisions and concerns about its authority may prevent it from doing so.
Apart from an ethics code, two other problems contribute to the public’s loss of confidence: the recusal statute and the financial disclosure statute.
On recusal, Chief Justice John Roberts has questioned whether it applies to the justices to the same extent as it does to other federal judges. With only nine justices, he argues, recusal could create an unacceptable 4-4 split.
Roberts relies on the rule of necessity, recognized in United States v. Will in 1980. In that case, federal judges challenged Congress’s failure to raise their pay. Since all federal judges had the same interest, strict application of the recusal rule would disqualify everyone. The recusal law had to give way to the rule of necessity.
But the rule of necessity does not apply here because there is no necessity. No legal question will forever go undecided unless the recusal law gives way. When there is an even split, the lower court’s decision still stands as a matter of law; the Supreme Court can decide the same issue in a different case.
Indeed, exempting the justices from the recusal law tells the public that a justice who should never have participated in a ruling can be the decisive vote.
And while an eight-member court is not ideal, the country lived with one for 15 months, after Justice Antonin Scalia’s death in 2016, when Senate Republicans refused to hold a hearing on then-President Barack Obama’s nominee. For part of the 18th century, the Supreme Court had six members.
The second problem concerns the financial disclosure statute. Justice Samuel Alito did not disclose the gift of an expensive 2008 private plane trip; Justice Clarence Thomas failed to disclose many gifts of costly vacations and plane flights. Thomas has not bothered to provide a public explanation. Alito justified his nondisclosure in an op-ed in The Wall Street Journal in which he not only misstated the law but also revealed an alarming insouciance about his ethical responsibilities.
The Ethics in Government Act provides that personal hospitality need not be reported if it is for “food, lodging, or entertainment.” The United States Judicial Conference, charged with administering the law, says that this exception applies only if the personal hospitality is “extended by an individual, not a corporation or organization, at the personal residence of that individual or his or her family or on property or facilities owned by that individual or his or her family,” for example, a weekend at a friend’s country home.
After ProPublica reported that in 2008 a wealthy donor provided Alito with free private plane travel, valued at $100,000, for an Alaskan fishing trip, Alito in his op-ed insisted that the private plane was a “facility” provided as “personal hospitality.” Hardly personal — the two men had never met. Nor was the plane trip a “facility.”
What the justice’s parsing of the law ignores, with selective quotes and ellipses, is that the exemption applies only to food, lodging, and entertainment extended “on” the donor’s “property or facilities.” Even if a private plane is a facility, surely a stretch, the exemption would cover only the value of food the justice ate and the movies he watched on the plane, not the trip itself.
Coming from a Supreme Court justice interpreting his ethical obligations, Alito’s defense is simply embarrassing. It shows no recognition of the reason for the disclosure rules in the first place. It shows no respect for the right of the public to know who is bestowing valuable gifts on the judiciary. If this hairsplitting is how Alito approaches his ethical obligations, we wonder what else he omits from his annual reports.
The justices’ cavalier treatment of the laws on the books makes it even more clear that broader regulation — enforcement by the court and the Judicial Conference of existing laws to start with as well as a code of ethics — is needed to begin to repair the court’s diminished standing.
Nancy Gertner, a former federal judge, is a senior lecturer at Harvard Law School. Stephen Gillers is Elihu Root professor of law emeritus at NYU School of Law.