It’s painful to even think about, and painful to say, but it’s true: The U.S. Supreme Court doesn’t seem to be the “best” it once was. Ideology, questionable ethics, political interference, far-fetched logic, hypocrisy, and mismanagement have taken their toll. The signs are hard to miss and hard to explain. They’re everywhere.
Throughout my life, I have always respected the Supreme Court and the justices who serve there, even when I have disagreed with a particular decision. The powerful and essential role the Supreme Court plays in American life, and its moral and constitutional authority to protect our democracy and our people from unlawful infringement, have inspired and sustained a respect since I was a young boy. The Supreme Court has always represented America’s best hope to live up to its fundamental promise with honor, fairness, consistency, decency, and integrity. I was perfectly content with the Supreme Court having the “last word” when a thoughtful, reasoned, and impartial final word was needed. But to be honest, I’m not sure how I feel anymore.
The Supreme Court, once respected and revered by most Americans, has caught fire. Its decisions now too frequently reek of partisan politics, moral platitudes, ad hominem attacks, undeserved predictability, ideology, intellectual self-righteousness, and rigidity. The Court has become a collection of individuals who boldly voice their views before special interests in a manner unbecoming of appointed judges.
To make matters worse, the Supreme Court appears to respond only to its own views of right and wrong, adhering to no code of ethics that we can follow or enforce. The Supreme Court has resisted all public efforts to adopt the same or similar code of ethics that governs the behavior of every other federal judge in the United States and to provide a mechanism for enforcing it. Nowhere else in government is such arrogance to be tolerated, and nor should it be tolerated. Judges, whether elected or appointed, are public servants and must be held ethically accountable as they exercise the public trust.
The Supreme Court seems oblivious to the misdeeds it has committed. Remember when the Dobbs decision was leaked months before the momentous decision was actually made to overturn nearly 50 years of constitutional rights? The Chief Justice commissioned an internal investigation to determine what allowed this historic blunder to happen, but unfortunately, it never revealed what was ultimately found and who was responsible. It’s not up to us. We deserve better. Transparency is key.
At least one judge recently came under scrutiny for allegedly receiving lavish trips, a family home and tuition payments for a family school from a vested billionaire “close friend.” Other judges have been less than diligent about filling out financial disclosure forms.
Does anyone really believe that if Justice Clarence Thomas had not been on the Supreme Court, any of his new-found, ideologically and politically-adherent “friends” would have supported him in any part of his life? I think their friendship can be more reasonably explained by his high status and the powerful voting power that reshaped American life that attracted their generosity. Even if none of that “generosity” influenced his decisions, it shouldn’t have happened. Appearances matter, and on the U.S. Supreme Court, appearances matter most. Or they should.
Justices don’t recuse themselves from cases where it seems obvious they need to do so these days. How can Justice Thomas remain silent on a January 6 immunity appeal when the facts of the underlying indictment reveal that his wife emailed the White House Chief of Staff on the very day of the riot in support of the theft? Or how can Justice Samuel Alito remain silent on the same immunity appeal in this political climate, or any political climate, really, while flying an American flag upside down on a flagpole? I was taught to respect the flag, and I’m sure you were too. The flag means more than a fight with your neighbor. It’s disturbing.
The Supreme Court is fast losing its moral authority. The opinion polls prove it. For me, it’s not about whether I agree or disagree with the wisdom of the decision, but the questionable motives currently at work in making it and the seeming disregard shown towards ethics, transparency and overall integrity. In the administration of justice, perception is reality. At the Supreme Court, perception must be the currency of the country. So is reality. Anything less is not good enough. Or should not be good enough.
Something is wrong. This is not the Supreme Court I remember. This is not the Supreme Court I grew up respecting. If the Supreme Court continues to undermine its position and erode public trust and confidence, we will lose the only respected, independent umpire that protects freedom and guarantees equality. We will guarantee that if we accept the status quo. The legal community, like all citizens who care about the country their children will inherit, needs to stand up and speak out.
John T. Broderick Jr. is a former Chief Justice of the New Hampshire Supreme Court.
