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Monday, June 24, 2024 | Back issues
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White flags at SCOTUS: Experts fear partisan defeat for ethics reform

Roadblocks continue to hamper efforts to address ethics concerns at the Supreme Court as the justices get pulled further into partisan politics.

WASHINGTON (CN) — Ethics experts have advocated for an off-ramp that allows the Supreme Court to reaffirm its role as a neutral arbiter, but the rejection of accountability for the justices now has court watchers worried about an existential crisis for the court itself.

“This is not going to end well for the court if it doesn't get its house in order or if Congress doesn't step up,” said Virginia Cantor, chief ethics counsel at Citizens for Responsibility and Ethics in Washington. 

Increasingly bitter political fights on the court’s docket are colliding with a stream of reports questioning the justices’ neutrality. As a result, some legal experts and the public are left with the impression that the court’s partisan impulses are prevailing over the rule of law. 

“Ever since Mitch McConnell helped Donald Trump pack the Supreme Court with extreme ideological justices through two improper confirmation processes, the Supreme Court has grown far more partisan, to the point where many Americans see the court as simply a political institution and not a court of law at all,” Paul Schiff Berman, a law professor at George Washington University Law School, said.

“And justices Thomas and Alito have damaged the court's credibility further by paying no heed to the requirement that they steer clear of any appearance of political partisanship,” he added.

Partisan lens

Lawmakers have continued to add fuel to the fire, suggesting that the justices act in their stead to solve political issues out of their control. 

Speaker of the House Mike Johnson suggested the Supreme Court should step in to overturn a unanimous jury verdict finding Donald Trump guilty of 34 felonies. The Louisiana Republican told Fox & Friends that he thought the justices were deeply concerned about the conviction, stating that the high court should “obviously” step in to “set this straight.” 

Court watchers saw the highly unusual request — to insert the nation's highest court into a state conviction —as the epitome of the partisan lens some view the court through. 

“Given the court's history over the last four years, it is not surprising to me that people on their side would think they would do something completely improper to help the Republican party,” Eric Segall, a law professor at Georgia State University, said in a phone call. 

None of the justices has publicly commented on Johnson’s request and legal experts speculate that it is extremely unlikely that the Supreme Court would hear Trump’s appeal at this juncture. But Johnson’s comments give the impression — true or not — that some justices have expressed opinions on how they would vote on a case before it has even reached the high court. 

“So, now people think it's actually plausible that the court would somehow reverse Trump's conviction, despite having absolutely no legal grounds for doing so given that this is a New York state case with no real federal issue involved,” Berman said. “This is yet another sign of how the rule of law is being destroyed in this country by an extremist right-wing movement that values loyalty to one man over loyalty to America's democratic rule-of-law values.” 

Measures of accountability

The appearance of impartiality has been central to the broader conversation around the justices’ ethics standards. For over a year, court watchers have scrutinized the justices for ethics lapses that could dent the institution’s reputation. 

Meaningful efforts to address these concerns have been few and far between, ethics experts say, and leave the court on a collision course with waning public confidence in a branch of government unable to enforce its own rulings.

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Last week, Justice Samuel Alito faced an opportunity to show the court's evolving position on ethics standards. Members of Congress demanded that the George W. Bush appointee recuse from several cases after reports revealed right-wing flags at his house. 

Alito dismissed lawmakers’ suggestion that a “Stop the Steal” symbol flown outside his house following the Capitol riot would lead any reasonable person to question his impartiality on cases involving Jan. 6 convictions and Donald Trump’s presidential immunity

Individual justices, Chief Justice John Roberts said, must decide whether their participation in a ruling might seem improper. That personal decision can’t be appealed to any higher body. 

Ethics experts were cautiously optimistic when the justices signed on to an ethics code, but their initial reservations are now on full display. 

“There's no enforcement mechanism, and so what it means is that it has no teeth,” Cantor said of the justices’ code. “You can't have accountability … . The code will have no deterrent effect unless there is some measure of accountability.” 

The concern from court watchers is not necessarily that Alito wasn’t required to recuse from Jan. 6 cases but that the Bush appointee alone made the decision.

Rhode Island Senator Sheldon Whitehouse’s Supreme Court Ethics, Recusal and Transparency, or SCERT, Act, created a process for recusal motions and mandated that the court draft an enforceable ethics code in the public eye. 

“Instead of Alito himself being the judge and jury as to the validity of the recusal motion, that bill says that the other eight justices would decide on the recusal motion,” said Gabe Roth, executive director at Fix the Court. “So at least you'd have … a wall between the potential recuser and the one deciding whether or not there's bias.”

Congressional oversight

But Congress has been sluggish to rein in what many lawmakers have framed as ethical and partisan adventurism by the justices.

“In the past year or so we’ve seen, very clearly, the biggest judicial legitimacy crisis in United States history,” said Alex Aronson, executive director of judicial reform group Court Accountability. “In the face of that, Congress — the first branch, the people’s branch — has completely shirked its duty to protect the people from this assault on our freedoms and our democracy.”

Whitehouse’s SCERT Act only recently regained momentum. The Senate Judiciary Committee passed the legislation, but it has languished on the Senate floor for nearly a year. 

Alito’s flag controversy returned the bill to the fore, with Senate Majority Leader Chuck Schumer saying passing the measure was a priority for Democrats. Schumer told Courthouse News that he and Durbin were “discussing the best ways to move forward” on the legislation, but lawmakers have yet to say when a vote could take place.

Durbin said the Senate must step in to address the ethics crisis that has engulfed the court, but experts see a disconnect between the Judiciary Committee chair’s statements and actions. 

“In the face of these scandals, Durbin has advanced about as tepid an oversight process as humanly possible,” said Aronson.

The Judiciary Committee earlier this year issued a subpoena to Federalist Society founder Leonard Leo, a conservative legal activist who ostensibly lavished Alito and Justice Clarence Thomas with high-dollar gifts that went unreported by the jurists. Republicans stormed off the panel as it met to vote on the subpoena. Leo declared the legal summons invalid and said he will not comply.

Durbin has been largely silent on whether he plans to take further action on Leo’s obstruction and has walked back subpoena threats for other benefactors, including conservative real estate magnates Harlan Crow and Robin Arkley.

Tradition or reform

Aronson suggested that Durbin is more interested in preserving Senate traditions and the little bipartisan collegiality remaining on the panel than in taking decisive action to curb ethical lapses at the high court.

The Illinois Democrat has expressed an affinity for longstanding bipartisan traditions such as blue slips for district court nominees — often seen as an avenue for the minority party to have a say in judicial appointments. Durbin has gone so far as to suggest reforming the blue slips process for appellate nominees, a norm abandoned under the previous Republican majority. 

But by prioritizing Senate tradition over forceful oversight of the Supreme Court, Aronson argued, Durbin is “misleading” the American public about the scale and urgency of the crisis and failing to inform them of the tools available to mitigate it.

Republicans are further hampering efforts at ethics reform. GOP lawmakers accused their colleagues of abusing the constitutional separation of powers and argued that Democrats are unfairly targeting the court’s conservative majority as retribution for rulings they dislike.

Ethics experts disagree, tracing legislative control over the judicial branch to the founding era. Aronson said lawmakers have clear authority to push back on what he called an extremist Supreme Court, with the SCERT Act taking a step in the right direction. 

“Although the provisions in SCERT are broadly popular with the American people, it has little chance of passing the Senate,” said Aronson, who previously worked for Whitehouse, “because Republicans have made clear they will do anything to protect their political allies at the court.”

The election year could further strain lawmakers’ political capital on ethics reform. Carl Tobias, chair of the University of Richmond School of Law, said some lawmakers could defect on ethics legislation. Vulnerable Democrats like Nevada Senator Catherine Cortez Masto have already broken with their colleagues on other judicial issues.

“I think that, given the partisan nature of where things are — and how close the Senate and presidential races may be — I don’t know that Democrats are going to have the stomach to fight on those issues,” said Tobias.

Durbin is likely reluctant to risk the cooperation of Judiciary Committee Republicans, such as South Carolina Senator Lindsey Graham, on issues like judicial nominees, Tobias explained. Graham’s cooperation has “been pivotal to Biden’s success” on nominees, he said, adding that he has been “helpful with red state senators, especially when it comes down to the wire.” 

But the South Carolina Republican has expressed strong opposition to Democrats’ Supreme Court probe and especially their move to subpoena Leo. Graham has previously suggested that he would stop backing White House judicial nominees in retaliation for the legal summons.

“Some of it may be bluster, and he doesn’t always follow through,” Tobias said, “but Durbin has drawn back on the subpoenas, especially for Leonard Leo.”

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