(Dobbs) Can We Still Trust The Supreme Court?
The Justices have to be above suspicion. They're not.
This is supposed to be a portrait of justice. A portrait of integrity, of principle, of trust.
These days though, for many of us, it is a portrait of doubt. And of suspicion. Our doubt, our suspicion about the ethics of the United States Supreme Court.
It matters, because reports in the past month about what appear to be ethical lapses by sitting justices, reports that increase our doubt and feed our suspicion, are not just in the abstract. Look at the far-reaching influence they have on the lives we live. These are the men and women who ultimately use their power to decide whether guns will be more ubiquitous in American society, whether a woman can get a safe and legal abortion, whether religion can pervade our public schools, whether the environment can be regulated, whether affirmative action for minorities is fair, whether voting rights are being suppressed.
We don’t have to like the justices who sit on the Court, we certainly don’t have to agree with them. But we do have to trust them. If they’re to have any credibility at all, we do have to believe that they are impartial when they make their decisions. Not ideologically impartial, because they are only human, which means it is inevitable that justices have honest differences of opinion, which lead to different interpretations about the constitutionality of the cases they hear.
But at the same time, we have to believe that the members of the High Court are influenced only by constitutional arguments and not by personal or political connections to the litigants who make them.
We have different expectations of the men and women we elect to the other two branches of government. Whether it’s Congress or the White House, we expect them to push an agenda, sometimes on the behalf of interest groups and lobbyists who pour money into their campaigns. What’s more, we have long come to expect conflicts of interest, ethical lapses, even corruption, in those other two branches of government.
But not the Supreme Court. Not until now.
Although he’s hardly alone in his ethical transgressions, Justice Clarence Thomas is the poster boy for the erosion of our trust.
Thanks mainly to Pro Publica, The Washington Post, Politico, Bloomberg, and CNN, we have learned over the past few weeks about the lavish lifestyle Clarence Thomas has led, funded by a man named Harlan Crow, a wealthy donor to Republican causes and Republican campaigns. In case you haven’t followed it, there have been fancy trips, fancy airplanes, fancy lodges, fancy yachts. Crow also bought a piece of real estate from the justice, the home in Savannah, Georgia, in which his mother has been living. And in the newest revelation, this same billionaire buddy paid private school tuition for a nephew of Thomas’s, for whom the justice is the legal guardian.
Does all this smell fishy? Only when you begin to add the numbers. Crow says what he did for Thomas was “no different from the hospitality we have extended to our many other dear friends.” And clearly they are friends, depicted in this photo-realistic painting Crow commissioned of the justice and himself and a few leaders of the conservative movement.
But as it turns out, there was once a case before the Court where a company that Crow headed was being sued. It was in the company’s interest that a lower court ruling would stand. The Supreme Court let that happen. There is no record that Crow’s dear friend Clarence Thomas recused himself. What’s more, a federal disclosure law requires justices to disclose most property sales exceeding $1,000, like the house Thomas sold to Crow in Savannah. He didn’t.
Then there’s the report last Thursday that a one-time officer of The Federalist Society, which has long been influential in the Supreme Court choices of Republican presidents, funneled tens of thousands of dollars to Clarence Thomas’s wife Ginni, a far-right Trump-aligned activist, as a consultant.
Curiously, her name was omitted from the paperwork, which at the time only listed a lobbying group that had a major case before the Court.
At this point, we don’t know that we’ve heard the last of the stories about very special favors from very special friends. For his part, in a rare public statement, Thomas explained it all away with this: “Early in my tenure at the court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the court, was not reportable.” The trouble is, his friend’s company did have business before the court, and the property sale was reportable.
The Court claims it polices itself. Chief Justice John Roberts wrote a letter two weeks ago to the Senate Judiciary Committee, to “reaffirm and restate foundational ethics principles and practices” and saying, “The Justices, like other federal judges, consult a wide variety of authorities to address specific ethical issues. They may turn to judicial opinions, treatises, scholarly articles, disciplinary decisions, and the historical practice of the Court and the federal judiciary. They may also seek advice from the Court’s Legal Office and from their colleagues.”
The problem is, it’s not working.
And it’s not just Clarence Thomas. A watchdog group called Fix the Court has dug up the failure of other justices across the ideological spectrum to recuse themselves from cases where they had some kind of personal— often financial— connection. From the left, Kagan, Sotomayor, and Jackson. From the right, Alito, Gorsuch, Barrett, Kavanaugh and Chief Justice Roberts, as well as Thomas. In other words, all nine. As icing on the fishy-smelling cake, nine days after Neil Gorsuch was confirmed to the Court in 2017, the head of a law firm that practices before it bought a piece of property from the new justice.
Analysts say that because of the separation of powers, it is hard to see how anyone else can impose a code of ethics on the Court, let alone enforce it. But that doesn’t mean there shouldn’t be one. There should. Now more than ever.
The justices are not above the law. But they have to be above suspicion. There needs to be a code of ethics stronger than whatever guides them now, because we need to have a Supreme Court we can trust. Right now, I’m not sure we can.
Over almost five decades Greg Dobbs has been a correspondent for two television networks including ABC News, a political columnist for The Denver Post and syndicated columnist for Scripps newspapers, a moderator on Rocky Mountain PBS, and author of two books, including one about the life of a foreign correspondent called “Life in the Wrong Lane.” He has covered presidencies, politics, and the U.S. space program at home, and wars, natural disasters, and other crises around the globe, from Afghanistan to South Africa, from Iran to Egypt, from the Soviet Union to Saudi Arabia, from Nicaragua to Namibia, from Vietnam to Venezuela, from Libya to Liberia, from Panama to Poland. Dobbs has won three Emmys, the Distinguished Service Award from the Society of Professional Journalists, and as a 37-year resident of Colorado, a place in the Denver Press Club Hall of Fame.
Well said Greg. I’m no longer surprised about the self-righteous hypocrisy of these “conservatives.” They clearly see themselves as living above this mortal coil and start proving that point when they lie (about settled law) in their Senate confirmation hearings--- only to overturn settled precedent at their first opportunity. What’s the synonym for corrupt?
The vague wording of the Constitution, allowing a Supreme Court Justice to serve as long as they practice "good behavior" should be tightened. Also, term limits are almost always a prudent idea, disallowing entrenched personal biases to fester and taint what should be a purer interpretation of our founders intentions.