Public trust in the Supreme Court is at an all-time low following some of the most polarizing decisions in the last 50 years, ethics issues that have erupted into a corruption crisis, and an unprecedented power grab that has turned the Court into an imperial one.
Twin polls from Quinnipiac University and Gallup have recently confirmed the public’s historical disapproval numbers ratings. Gallup first started asking Americans to rate the job the court was doing in September 2000. At that point, 62% of Americans approved. Today, Gallup is at 40% and Quinnipiac is at 36%. Nearly 7 in 10 registered voters think the Court is mainly motivated by politics instead of the law. And a whopping 63% surveyed would support limiting the number of years a justice can serve on the Court. Yes, please.
Meanwhile, back in their ivory tower, we have witnessed the rise of the most activist court in the past century as the six-member ultra-conservative majority has embarked on a radical path to restructure laws and life across the country by stripping away power from every political entity, but for the Court itself. The Court has shown it will even take sham cases to do so.
Stanford Law Professor Mark Lemley’s groundbreaking Harvard Law Review article described the emergence of the “imperial Supreme Court” by saying, in part, that the Court has taken “significant, simultaneous steps to restrict the power of Congress, the administrative state, the states, and the lower federal courts. And it has done so using a variety of (often contradictory) interpretative methodologies.” Lemley asserts that the Court “has begun to implement the policy preferences of its conservative majority in a new and troubling way: by simultaneously stripping power from every political entity except the Supreme Court itself.”
That’s a dangerous precedent for a court that could ultimately determine the future of our democracy after another contested presidential election challenge.
And, then, there’s the Court’s corruption crisis. The Supreme Court is the only court in the federal judiciary that does not have a formal code of ethics. The justices have failed to create their own code, and the Senate is moving a bill that would compel it to do so, but that will not likely survive.
In response to a long overdue push for ethics reform on the court, rightwing Justice Samuel Alito has taken the controversial position that Congress didn’t create the Court and “no provision in the Constitution gives [Congress] the authority to regulate the Supreme Court — period.” This claim lacks merit.
Congress clearly has extensive authority to regulate the Court in a plethora of ways, and, in fact, Congress has long played a critical role in regulating the Court. For example, Congress has required justices to take an oath written by Congress; they have required them to recuse themselves from cases in certain circumstances; they have changed the size of the court, and have set certain disclosures of financial holding and other sources of income.
Alito failed to declare gifts from conservative billionaire, Paul Singer, after accepting a seat on his private plane, flying to Alaska for a luxury fishing trip. Alito justified his actions by noting that the seat would have been vacant had he not used it. Had Alito chartered the plane, it would have cost him more than $100,000. Putting aside the fact that this was not an acceptable gift, Alito failed to recuse himself from any of the more than 10 cases Paul Singer had before the court after the trip. But Alito would have us believe there is nothing to see here.
Not to be outdone, ProPublica recently reported that fellow rightwing justice Clarence Thomas’ extravagant lifestyle — which has largely been unreported — has been supported by uber-wealthy benefactors who share his ideological views. These benefactors have a strong incentive to keep these reliable votes on the court by making their lives easier rather than letting President Biden and Senate Democrats appoint someone more mainstream.
Thomas has reportedly been on at least 38 destination vacations, 26 flights on private jets, 8 by helicopter, a dozen VIP passes to professional and college sporting events with seats in the skybox; two luxury resort trips in Florida and Jamaica; and, the list goes on.
Then there is his conservative friend (who has reportedly worked to move the judiciary to the right), Texas real estate billionaire Harlan Crow. Crow secretly bought Thomas’ Mother’s house, who still lives there, from Thomas and later made $36,000 worth of home improvements. Crow also paid for Thomas’ great nephew’s tuition payments for two years, who Thomas was raising as a son.
On Thursday, Thomas disclosed three more trips aboard Crow’s private plane, marking a sharp contrast to the other trips he took with Crow which were undisclosed.
Definitely, nothing to see here, either.
So, what tools do Americans have in their toolbox? First, let’s not forget that Congress has the power to impeach and remove justices for bad behavior in much the same manner as the president.
Congress can do more than simply call for Thomas and Alito to resign. Second, the lack of transparency and oversight of this court is in stark contrast to every other branch of government. If the Court won’t write their own code of ethics, it’s time for Congress to do it for them.
Third, rather than adding more people to the Court, Congress should explore setting term limits for Supreme Court justices.
Each of these measures won’t be easily achieved, but perhaps if we the people, lead the call for these important reforms, Congress may ultimately follow. One day, the pendulum will swing back and conservatives will be calling for these reforms too.
Doug Friednash grew up in Denver and is a partner with the law firm Brownstein Hyatt Farber and Schreck. He is the former chief of staff for Gov. John Hickenlooper.
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