As the Supreme Court, mired in conflicts and controversies, continues to issue dumbfounding decisions, Americans’ approval of our imperial Supreme Court is at a near-historic low. Only 38% of Americans approved of the court’s performance in a recent Fox News poll.
The extreme right-wing activist majority has reversed longstanding legal decisions and precedents. These rulings have adversely affected Americans’ freedoms, legal rights, and civil rights. These justices have intentionally chosen to decide specific cases based on an ideological vision that is out of touch with most Americans. Two years after its decision to overturn Roe v. Wade, two-thirds of Americans still oppose the Court’s decision with political ramifications that could meaningfully impact the 2024 election as it did during the midterm election.
And, just when you thought the imperial Court couldn’t cause any more institutional damage, it issues a 6-3 decision reshaping the institution of the presidency by granting presidents broad immunity from criminal prosecution for crimes they commit in office. The Court’s decision essentially insulates presidents from criminal liability. Thanks to this Court, Americans can no longer say that no person is above the law. Yes, the Court’s dangerous and extreme decisions threaten the foundation of our democracy.
But it’s not just about the perilous decisions that make this Court’s approval ratings so low, it’s their unchecked behavior too. Moral lapses created a corruption crisis, which led to the Court’s implementation of a Code of Ethics. The problem here is that the ethics code is non-binding and it allows the justices to police themselves. As a result, the shenanigans continue and the new code has failed to stop justices Samuel Alito and Clarence Thomas from participating in cases where their impartiality is rightfully questioned.
This week we learned that Justice Thomas — already known to be the benefactor of millions of dollars of gifts, trips and personal benefits — had taken even more luxury trips paid for by wealthy conservative donor Harlan Crow than previously reported by journalists. ProPublica first reported that Thomas received “at least 38 destination vacations, including a previously unreported voyage on a yacht around the Bahamas; 26 private jet flights, plus an additional eight by helicopter; a dozen VIP passes to professional and college sporting events, typically perched in the skybox; two stays at luxury resorts in Florida and Jamaica; and one standing invitation to an uber-exclusive golf club overlooking the Atlantic coast.”
In response, the Senate Judiciary Committee launched an investigation and found an additional three flights on Crow’s jet: to Glacier Park International Airport, to Dallas and to Savanah, Georgia.
For his part, Alito also received unreported significant luxury gifts from billionaire donor Paul Singer and had an upside-down American flag flying at his home to support the January 6th riot in the days after the insurrection attempt. Alito’s fishing buddy, Singer, later had cases before the Court, including one where Alito voted with the majority of justices in a case worth $2.4 billion to Singer’s hedge fund.
It’s no wonder that President Joe Biden has called for a binding, enforceable code of ethics for the Supreme Court. Justices should not be above the law either. And, this isn’t a partisan issue. A new USA Today/Ipsos poll showed that 70% of Republicans support a binding code of ethics that would require disclosure of gifts, prohibit involvement in political activity, and mandate recusal from cases involving conflicts of interest for themselves or their spouses.
It is also time for term limits to restore the Court’s integrity and independence. President Biden has proposed an 18-year active term for justices, which two-thirds of Americans support as well.
Supreme Court justices enjoy a lifetime tenure until they die, step away voluntarily or are impeached for “treason, bribery or other high crimes and misdemeanors.” The latter is extremely rare. Justices serve an average of about 28 years, which is equivalent to seven presidential terms. Justice Amy Coney Barrett, who was appointed at age 48, and Justice Brett Kavanaugh, who was appointed at age 53, could easily serve over 35 years.
Congress has the power to regulate the structure and jurisdiction of the Court and impose term limits. By way of example only, the number of seats on the Supreme Court has changed from a low of five to a high of ten members over the years. After the Civil War, the number of justices was set at nine. Many have argued for adding more members to the Court, but that’s not going to solve the problem. And, if Congress won’t do it, it can be accomplished by a constitutional amendment as well.
According to the Brennan Center for Justice, no other major democracy gives lifetime seats to judges who sit on constitutional courts, and even countries that previously did like Canada and the United Kingdom, have abandoned this practice. It is also incongruent with the practice among states that overwhelmingly oppose lifetime tenure. It’s far from a partisan issue, but rather simply a matter of common sense. Forty-seven states, red, blue, and purple, require that their state supreme court justices serve fixed terms, subject to re-election or re-appointment. Further, most states have mandatory retirement ages. There are only three states that allow indefinite terms, but in those states, two of them have age limits.
Members of the Supreme Court’s right-wing have placed ideology over impartiality, with its two most radical justices placing their own self-interest over the Court’s integrity. And, in doing so, they have undermined the foundation of our democracy. Without serious reform, both the president and the Court, will continue to operate in a manner that places them above the law and the public’s distrust will only continue to grow.
Doug Friednash grew up in Denver and is a partner with the law firm Brownstein Hyatt Farber Schreck. He is the former chief of staff for Gov. John Hickenlooper.
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Originally Published: August 14, 2024 at 6:00 a.m.
