With court integrity on thin ice, the justices are sharpening their skates

WASHINGTON (CN) — Only weeks after a controversy about masking for arguments spurred two rare statements from the Supreme Court on its spirit of collegiality, questions of partisanship are heaping pressure on the justices to make more assurances.

The scrutiny follows recent reports published in both The New Yorker and The Washington Post about the failure of Justice Clarence Thomas to recuse himself from cases that intersect with his wife's political activism, giving the appearance of a conflict of interest.

While outspoken about many issues, Ginni Thomas found notoriety most recently through multiple Facebook posts in which she endorsed the rally that preceded the Jan. 6 riot at the U.S. Capitol, demanding that the 2020 election be overturned. Amid a congressional investigation into the insurrection, she also signed letter from conservative leaders this past December that criticized the probe as “overtly partisan political persecution.”

A month later, Justice Thomas was the court's only vote in favor of the Trump White House as it sought to keep its records related to the Jan. 6 riot away from the select congressional committee 6. The vote from Thomas came with no explanation.

But the Jan. 6 case was not a one-off occurrence, it was just the most overt. Ginni — who runs a political lobbying firm, Liberty Consulting — has held leadership positions that puts her in shoulder-rubbing proximity to the same people filing cases before the court her husband sits on.

“This is an unprecedented example of a justice’s spouse being involved in some of the same issues that are before the justices on a yearly basis,” Gabe Roth, executive director of Fix the Court, a nonpartisan advocacy group, said in a phone call. “I mean, it's everything from affirmative action to abortion to immigration. Ginni is involved either financially or ideologically or organizationally with so many people that are participating in cases that come before her husband.”

According to the New Yorker, Ginni and Clarence Thomas declined the chance to respond to the allegations against them. The Washington Post said its requests for comments went ignored by both the Thomases and a Supreme Court spokesperson. A Supreme Court spokesperson has also not responded to additional questions on allegations raised in both stories.

The Supreme Court is a unique institution in many ways but in particular how the justices communicate with the public. Unlike in Congress or even the White House, the press does not get many opportunities to interact with the justices or ask them questions. That being said, when the court or justices do make statements, they are closely watched and heavily analyzed to glean every possible nugget of information that can be learned about the incredibly influential institution.

Recently, the court released two statements in one day — something that is extremely rare — to address reporting that suggested there was a quarrel among the justices over wearing a mask during arguments to prevent against transmission of the virus that causes Covid-19. The statements did not address any health-related concerns over the controversy but instead focused on thwarting rumors that there was any bad blood between the justices.

When the justices do make public comments, some have made a point to voice their aversion to being called “partisan hacks." These criticisms continue to arise, however, and that has been the case ahead of Justice Neil Gorsuch's scheduled speech on Friday at an event closed to press and public hosted by the Federalist Society, a legal juggernaut for conservative issues.

Prominent figures in attendance at the weekend-long gathering will include former Vice President Mike Pence, Florida Governor Ron DeSantis and former Trump White House press secretary Kayleigh McEnany.

“The event in Florida is impactful given who the speakers are, given who the attendees are, and it's a clearly partisan event,” Roth said. “If we want our court to be above politics, they should stay above politics not only when they're issuing rulings from the bench, but also when they're engaging in activities off the bench. It shouldn't be too much to ask.”

The court has not responded to requests for comment on why Gorsuch’s speech is closed to the press.

It is the lack of public access that Caroline Fredrickson, a Georgetown University law professor who served on the White House's commission to study the high court, called "most problematic."

“It seems that somebody who serves the United States, has taken an oath to the Constitution, and is supposed to be an impartial arbiter over our laws shouldn't be giving secret speeches to groups that are so active in the political process," she said in a phone call.

For critics of the court's perception, its silence on issues of partisanship, only weeks after there was considerable effort to assuage concerns that the justices are screaming at each other in the hallways, rings alarms.

“I think their priorities are misplaced, right,” Roth said. “I think that the mask issue was really small beans compared to some of these larger issues of justices participation in cases in which they're potentially biased. I wish that the amount of concern and energy that the justices put into maskgate was placed into trying to create a policy that would prevent justices from speaking at overly partisan events or prevent justices from hearing cases where they might be biased.”

Because the court and its justices speak so rarely, what they don’t say matters just as much as what they do.

“I think the perception of the court as at least projecting that it stands above and apart from the rest of us is problematic,” Fredrickson said. “It is an independent branch, but, nonetheless, we're in a democracy and they are sworn to uphold the Constitution. The idea that they won't be responsive to appropriate press inquiries is really troubling, and it's almost a circle-the-wagons kind of attitude.”

Justices on the high court do not follow an ethics code like other federal judges, and experts say these recent scenarios just reinforce the need for the justices to be held to the same standards as their peers.

“This is an area where Congress certainly could and should act in a variety of ways,” Fredrickson said. “That is, the lower courts are subject to ethics rules involving financial conflicts of interest and so forth that are not applicable to the Supreme Court. And it seems to me there's no reason why those ethics rules shouldn't be extended to cover the Supreme Court.”

Even without an official ethics code, the justices are still expected to avoid not only impropriety but the appearance of impropriety as well. This is an important sticking point because while one could argue that the justices' actions don’t actually amount to wrongdoing, it would be hard to argue that they don’t appear that way.

“So much of the ethics questions that arise at SCOTUS are less about impropriety per se than about the appearance of impropriety,” Roth said.

Without explanations from the justices or the court regarding allegations about impropriety, the integrity of the institution suffers while the justices are undertaking consequential decisions set to impact the country for decades.

“That really just imperils the institutional integrity of the Supreme Court, and the justices know it, and they just seem not to care,” Roth said.

Follow @KelseyReichmann

Categories / Courts, National, Politics

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With court integrity on thin ice, the justices are sharpening their skates

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