The Supreme Court’s Judicial Ethics Crisis
There is an ethics crisis at the U.S. Supreme Court. Earlier this month, the New York Times reported on a conspiratorial relationship between certain justices and ultra-conservative political interests to advance a far-right extreme agenda, particularly around abortion access. Former conservative activist Reverend Robert Schenk also alleged that Justice Alito leaked the Court’s 2014 decision in Burwell v. Hobby Lobby.
In response, on December 8th, the House Judiciary Committee held a hearing titled “Undue Influence: Operation Higher Court and Politicking at SCOTUS,” in which committee members investigated the corruption and impartiality of the Supreme Court, including questioning whistleblower Rev. Schenck himself. Schenk explained that he advised his allies to “contribute money to the Supreme Court Historical Society and mingle with justices at functions.” His stated goal was to “embolden the justices” to write anti-abortion opinions that are as far to the ideological right as possible. It’s important to note that even if the attempts made by this conservative activist did not actually impact how the justices wrote opinions, the very fact that certain conservative justices were amenable to such influence undermines the Court’s legitimacy and the rule of law.
While news of conservative justices flouting basic ethical standards is galling, it is not at all surprising. As detailed in AFJ’s 2022 report Accountable To None: The Urgent Need for Supreme Court Ethics Reforms, allegations of extrajudicial, political misconduct by Supreme Court justices have gone formally unchecked for years. While the liberal justices have been known to make speeches in which they discuss prior decisions and Justice Ginsberg was lambasted for criticizing then-candidate Donald Trump (for which she apologized), those incidents simply do not compare to the brazen allegiance the conservative justices have to the far-right’s extreme political agenda. Based on their repeated conduct, it appears that these justices care more about their position in wealthy, influential conservative circles than they do about impartiality and protecting the legitimacy of the Court.
Here are just a few recent examples:
- In December, Justice Kavanaugh attended a holiday party hosted by the head of the Conservative Political Action Coalition (CPAC). The party’s other attendees included former Trump advisor Stephen Miller, whose group American First Legal Foundation has filed legal briefs in cases currently pending before the Court.
- Last month news broke that Justice Alito spoke during a black-tie gala hosted by the conservative Federalist Society, where he praised the organization’s role in the legal community. In other blatantly political speeches, Justice Alito has shown that he would rather air petty grievances against the media, liberals, and anyone who dares question his legal theories than protect the Court from claims of bias.
- Justice Clarence Thomas has now notoriously failed to recuse himself in multiple cases that involved his wife, Ginni Thomas, and her role in the January 6th insurrection.
- Justice Amy Coney Barrett sat for oral arguments in a case being litigated by an organization that has paid her, personally, for at least five speaking engagements since 2011.
- In 2019, Justices Alito and Kavanaugh met with the head of National Organization for Marriage, an anti-LGBTQ organization that had filed an amicus brief in a case the Court had held oral arguments for a few weeks earlier.
The list goes on. This type of conduct is blatant. The justices act like they are above ethics standards, and — absurdly — they technically are. While all other federal judges are required to follow the Code of Conduct for United States Judges, a set of ethical guidelines codified and enforced by the U.S. Judicial Conference, the Supreme Court justices merely use the Code for “guidance.” In the absence of a mandatory code, questionable conduct by Supreme Court justices has clearly proliferated, creating escalating concerns about the integrity of our court system. Americans’ confidence in the U.S. Supreme Court hit a historic low after the Court dismantled the constitutional right to abortion, and these kinds of allegations only make things worse.
Justice Alito’s conduct in the wake of the recent allegations further underscores the importance of creating an accountability tool for the currently uncheckable Supreme Court. Alito denied any wrongdoing and the Supreme Court subsequently issued a statement asserting this type of conduct is permitted under the Court’s rules — which is itself appalling. Instead of apologizing or humbly acknowledging any type of perceived misconduct, Justice Alito acted impervious to criticism.
In fact, Alito continues to show obvious bias and in recent oral arguments, Justice Alito was positively unmoored. During arguments for 303 Creative v. Elenis, a case that could fundamentally undermine rights for LGBTQ+ people and other marginalized communities, Justice Alito chose to ask downright offensive hypotheticals like about children wearing Klu Klux Klan robes and make inappropriate comments about a marital dating website to his colleague, Justice Kagan. Such microaggressions have no place in respectful deliberations and speak to the sense of invincibility he feels to advance his unlawful conservative agenda.
AFJ, and 100 other organizations, have called for Congress to pass Supreme Court ethics reform legislation this lame duck session. The Court’s legitimacy demands Congress conduct serious oversight. Senate Judiciary Committee chair Richard Durbin, D-Illinois said his committee is reviewing the allegations in the Times report. “It is unacceptable that members of the highest court in the land are exempted from the judicial code of ethics when wealthy special interests are spending millions of dollars in dark money to influence the court’s decisions,” Durbin said in a statement. “Since the court refuses to act, Congress should pass Sen. [Chris] Murphy’s Supreme Court Ethics Act, which would require the court to adopt a code of ethics for Supreme Court justices.” AFJ applauds these early efforts and hopes that the full Congress can pass judicial ethics reform as expeditiously as possible to save the Court from this crisis of legitimacy.
A fair and just judiciary ensures democracy over tyranny; truth over lies; freedom over oppression. To equitably administer the law, jurists cannot be financially or personally beholden to any political or socioeconomic faction. If the public no longer trusts that judicial decisions are rooted in logic, fairness, and truth, the judiciary’s legitimacy crumbles — and it’s already happening.
Jeevna Sheth is a Dorot Fellow at Alliance for Justice.