While that may not seem relevant at first glance, legal experts say: They are increasingly suspicious of each other The country’s highest court A neutral interpreter of the law.
“They may have legitimacy issues,” said Charles Gay, a law professor at Indiana University and an expert on judicial ethics. “The traditional idea that court decisions should be accepted whether one agrees with them or not is becoming less and less applicable. Many of the ethical issues facing the courts contribute to the perception that they are political rather than legal institutions.”
Defenders of the Supreme Court, many of whom are conservative, dismiss these concerns as liberal frustration with the court’s overwhelmingly conservative majority. But an Associated Press-NORC poll released in late June highlighted the issue: Nearly four in 10 respondents said they had little confidence in the Supreme Court, and seven in 10 said they believed the justices’ decisions were based on ideology rather than fairness or impartiality.
Justices Clarence Thomas and Samuel A. Alito Jr. have been in the spotlight for their second terms, and in recent months have been rife with reports of political flags and lavish free trips. Democrats and some independent experts have criticized the two justices for being too timid. Stay away from something They are calling for a review of high-profile cases and a new review of court ethics.
The latter demands are likely to remain stalled in Congress unless Democrats win control of both houses of Congress in the November elections and retain control of the White House. And the outcome of the presidential election will determine whether retirements from the Supreme Court strengthen or weaken the court’s 6-3 split between conservatives and liberals for years to come.
The growing partisan rancor surrounding the Supreme Court was highlighted by a stabbing of sorts that took place at a recent Supreme Court Historical Association dinner. — This is a type of hardline political tactic often seen in election campaigns. Liberal activists secretly recorded Alito and his wife answering politically leading questions and then posted the recordings on social media for all to see.
Meanwhile, the final weeks of his term saw a dramatic shift to the right, with a series of landmark decisions on presidential immunity, federal regulatory state and more. And critics have warned: It’s very political.
Kermit Roosevelt, a University of Pennsylvania law professor who clerked for then-Justice David H. Souter decades ago, said the decision will likely heighten public perceptions that the justices are partisan, especially as lower courts have begun issuing decisions that reflect new limits on the agency’s power and on prosecuting former President Donald Trump’s alleged misconduct.
“As we begin to see the results of recent decisions like the Chevron rejection and presidential immunity, I think that nickname for the federal regulatory state decision will further diminish its reputation,” Roosevelt said.
Several experts Courts need to fully embrace ethics A comprehensive review to help reassure the public.
The Supreme Court He unveiled a long-awaited code of conduct early in his term, hoping to put an end to controversies like last year’s revelations. Thomas and Alito had been taking unreported trips funded by wealthy backers, and Thomas had also been asked to recuse himself from election-related litigation because his wife was suing to overturn the election results. 2020 presidential election.
In announcing the rules, the Supreme Court said it wanted to correct a public misconception that “unlike all other jurists in the country, the justices of this court do not believe they are bound by any code of ethics.” But experts in judicial ethics have slammed the lack of an enforcement mechanism or specific provisions on lavish gifts and when justices should shun them.
Renee Knake Jefferson, a professor of legal ethics at the University of Houston Law Center, describes this code as “It’s ceremonial at best.”
“It doesn’t address the issues that the public was very concerned about.” she Said.
The controversy flared up again in May.
The New York Times reported that an upside-down American flag was flying. At Alytos The symbol was displayed at his Virginia home a few weeks after the attack on the Capitol on Jan. 6, 2021. The symbol has a long history as a symbol of hardship in the military and has been used by protesters across the political spectrum, but was also adopted at the time by supporters of the “Stop the Steal” movement and was carried by some of the rioters at the Capitol.
Alito said his wife, Martha Ann, put up the flag after an argument with a neighbor. The neighbor said in an interview that the disagreement began in December 2020 when Martha Ann Alito made a comment about a political sign in their yard that disparaged Trump and the Republican Party.
Days after the Times’ initial report, the paper revealed that a “Appeal to Heaven” flag, adopted by Christian nationalists, had flown at Alito’s vacation home on the New Jersey coast last summer.
Democrats and judicial ethics experts said the flag cast doubt on Alito’s impartiality. Alito rejected their demands. It would remove him from two high-profile cases over presidential immunity and whether prosecutors wrongfully charged the Jan. 6 defendants with obstruction of justice.
“When I saw it, I asked my wife to take it down, but she refused for several days,” Alito said of the Virginia flag in a letter to Senate Judiciary Committee members Dick Durbin (D-Ill.) and Sheldon Whitehouse (D-Iowa), explaining why he believes the case does not meet his standard to stay out of the courtroom. “My wife likes to fly the flag. I don’t.”
Supreme Court Chief Justice John G. Justice Roberts Jr. also rejected a request to meet with Democratic senators to discuss ethics issues, citing the separation of powers and the need for judicial independence.
Alito was soon embroiled in controversy again., Time A liberal activist released a video recording of himself posing as a Catholic conservative at the historical society. “The nation’s polarized politics mean one side is going to win,” Alito said at the June event, appearing to back activists’ claims that the nation needs to restore its “sanctity.”
Martha Ann Alito is shown speaking about the flag controversy and expressing disdain for flying the pro-LGBTQ Pride flag.
In that same month, Thomas said, The two trips in 2019 It was paid for by Texas billionaire and Republican donor Harlan Crow. The Senate Judiciary Committee also uncovered three plane trips for Thomas that Crow funded between 2017 and 2021. Thomas’ lawyers have said Crow should not have to cover the expenses. Report.
Alito and Thomas did not respond to requests for comment this week.
As the ethics debate piled up, momentum grew within the Democratic Party. Congress should act to enact ethics legislation.
While praising the steps already taken by the Court, The White House An independent oversight body with the power to investigate allegations He pointed to the inconsistency in Alito’s explanation of the upside-down American flag as a situation worthy of deeper investigation.
“They remain the only nine people in the United States government who don’t have to answer basic questions about what the facts are when fundamental ethical questions are raised,” Whitehouse said of the Supreme Court justices.
Durbin tried in June to pass Whitehouse’s stalled bill that would have codified the Supreme Court’s code of conduct, gift reporting, recusal standards and disclosure of amicus briefs, but Republicans thwarted the effort to pass the bill by “unanimous consent.”
Robert Ray, the former independent counsel who replaced Ken Starr in the Whitewater investigation, said the ethics overhaul was a political attempt by Democrats to sabotage a Supreme Court that has delivered a series of major victories for conservatives. He said some of the bill’s provisions unfairly infringe on judicial power and are likely unconstitutional.
Wray said the justices have largely made the right decisions on recusal and argued that it is the left, not the justices, that is undermining the Supreme Court’s legitimacy.
“What’s really happening here is an effort by one side of the political divide to damage individual justices and the institution of the Supreme Court because they don’t like what the Supreme Court has decided,” Wray said. “This is a particularly nasty and distasteful way of doing things.”
On June 25, Representatives Jamie Raskin (D-MD) and Alexandria Ocasio-Cortez (D-NY) introduced a bill to limit donations to judges to $50, the same as Congress. They also sent a letter to Roberts demanding that he answer questions about his handling of ethics issues. Recently, Ocasio-Cortez has proposed impeaching the judges, and House Democrats have proposed a constitutional amendment to overturn the Supreme Court’s decision to grant presidential immunity.
“This is a very real threat to justice,” said Gabe Ross, executive director of the court watchdog group Fix the Court. He sees the scrutiny directed at the court as a positive step.
“I’ve long believed that Supreme Court justices should be treated like politicians when it comes to assessing their moral character and potential problems,” Ross said. “We’ve reached that point, and I think that’s a good thing, given the amount of power the justices have.”
