Supreme Court Justices Elena Kagan and Amy Coney Barrett testified before committees in the House and Senate last week, the first time justices appeared before Congress in seven years. That in itself demonstrates a persistent problem of the court. Its 223-year-old foundational ruling in Marbury v. Madison cemented the concept of constitutional checks and balances, but those atop the judicial branch don’t seem to like being checked very much.
Consider the fact that the court’s own ethics code is enforced by an honor system governed by the justices themselves, unlike other federal judges who can face serious sanctions for flouting ethical rules, facing consequences from reprimands to suspension and even referrals for impeachment.
The justices reaffirmed their commitment to honoring their nonbinding code in 2023, but only after a series of bombshell ProPublica reports uncovered lavish vacations taken by Justices Clarence Thomas and Samuel Alito funded by billionaire conservative political donors.
Chief Justice John Roberts Jr., as he has throughout the 20 years I’ve covered this court, has continued to defend the court’s self-policing system. He has consistently asserted that any changes to court’s procedures must come from inside the court.
Representative Rosa DeLauro, Democrat from Connecticut, pressed Kagan and Barrett on the issue during the justices’ appearance last week before the House Appropriations Committee.
DeLauro asked about some of extravagant gifts the justices have received, offerings valued far above the limits that, for example, members of Congress are allowed to accept. DeLauro asked if it was time for the court to adopt a binding code of conduct with “an independent enforcement mechanism” such as the establishment of a panel of respected former and retired federal judges within the judicial branch that consider alleged ethics breaches.
Kagan, as she has for years, said she supports the idea. But, she said, implementing it would be complicated.
While clarifying that “I think that my colleagues are taking this code incredibly seriously,” Kagan said, “I think that we would be better off with an enforcement mechanism.
“I think it’s really important that it come from the judiciary itself,” Kagan said.
Kagan also noted that efforts by Congress or the executive branch to govern court procedures would pose too great a threat to judicial independence. But she added that there are even some “pros and cons” to creating an independent oversight panel within the judiciary.
“There are real complexities about how that would be done, but, I have not changed my mind,” Kagan said.
Barrett wasn’t so sure.
“I’m less certain,” Barrett said. “I mean, I’m certainly fully committed to the code, as are all of our colleagues, but because of some of the complexities that Justice Kagan identified, I’m just not quite sure.”
Well, I have good news for the justices: It doesn’t have to be that complicated.
In fact, experts, legal organizations, and members of Congress have proposed workable solutions — all of which would protect judicial independence while underscoring that the Supreme Court is not above the law.
This is crucial at a time when public sentiment about the court remains at dangerously low levels. A new Washington Post-Ipsos poll found that 46 percent of Americans believe that the court’s recent rulings on President Trump’s policies were based on ideology rather than the law.
The poll also found that 55 percent of Americans disapprove of the Supreme Court’s performance while only 41 percent approve. The disapproval rating is a little better than the 58 percent of Americans who disapproved of the court in 2022, fresh off its ruling overturning Roe v. Wade. But not much.
That is a crisis when trust in government is a crucial pillar of a functioning democracy. That crisis is made worse when many of the justices themselves don’t seem to get just how dangerous that lack of trust can be for the court and the nation.
Barrett noted during her testimony that in addition to the justices’ legal requirement to disclose gifts they receive on their annual financial forms, there are also some prohibitions from accepting gifts from people who are litigants before the court.
That is true. But the question is, why should justices accept lavish gifts at all? It’s one thing for justices to be paid for outside work, like teaching at law schools or writing books (though those actions are not entirely free of ethical concerns). But given the fact that, for example, Justice Sonia Sotomayor pulled in plenty of outside earnings on top of her $300,000 salary as a justice last year, couldn’t she have paid for the $4,333 worth of tickets for her and her friends to see a Bad Bunny concert in Puerto Rico? Let’s hope that the performer’s label, Rimas Entertainment, will not have business with the court in the future.
That may seem like a silly quibble. But rules should apply to everyone, and every justice. Democrats in both houses of Congress have repeatedly introduced reasonable legislation that would set up an independent body within the Supreme Court to help keep them in line with their ethics code and make the court more transparent for the American people. Lawmakers in both parties should gather the political gumption to put real teeth in Supreme Court ethics rules. That doesn’t pose a separation of powers problem. It’s a solution for waning public trust.
Kimberly Atkins Stohr is a columnist for the Globe. She may be reached at kimberly.atkinsstohr@globe.com.