The dynamics may not seem related, but legal experts say they have mutually reinforced doubts among a large swath of the country over whether the nation’s highest court can be a neutral interpreter of the law.
“They’ve got a potential legitimacy problem,” said Charles Geyh, an Indiana University law professor and expert on judicial ethics. “The traditional notion that we will accept the results of the court whether we agree with it or not … is decreasingly the case. A lot of the ethics problems the court confronts fuel the perception that it is an organization more political than legal.”
The court’s defenders, most of them conservative, dismiss such concern as griping from liberals who disagree with the decisions of the Supreme Court’s conservative supermajority. But an Associated Press-NORC poll released at the end of June crystallized the issue: Nearly 4 in 10 respondents said they have hardly any confidence in the court, and 7 in 10 said they believe the justices’ decisions are motivated by ideology, not fairness and impartiality.
For a second term, headlines have centered on Justices Clarence Thomas and Samuel A. Alito Jr., with reports in recent months about politically charged flags and lavish free travel. Democrats and some independent experts have called in vain for the two justices to recuse from certain high-profile cases, and for a new court ethics overhaul.
The latter demand will almost certainly remain stalled in Congress unless Democrats wrest control of both chambers in the November election and retain control of the White House. And the outcome of the presidential contest will determine whether any retirements from the court lead to a strengthening or weakening of the 6-3 conservative-liberal split in coming years.
The increasingly partisan rancor surrounding the court was underscored by a sting of sorts at a recent Supreme Court Historical Society dinner — the type of hardball political tactic more commonly seen on the campaign trail. A liberal activist secretly recorded Alito and his wife answering politically leading questions, then released the recording on social media for all to behold.
Meanwhile, the final weeks of the term saw a series of major rulings on presidential immunity, the federal regulatory state and other topics that produced a dramatic lurch rightward — and were seen by critics as deeply political.
Kermit Roosevelt, a law professor at the University of Pennsylvania who clerked decades ago for then-Justice David H. Souter, said the decisions will probably increase the public perception that the justices are partisan, especially as lower courts start to make rulings that reflect new limits on agency power and on prosecuting alleged wrongdoing by former president Donald Trump.
“When we start seeing the consequences of some of these recent decisions like overruling Chevron and presidential immunity, I think its reputation will go down even further,” said Roosevelt, using the nickname for the decision on the federal regulatory state.
Several experts said the court needs to fully embrace an ethics overhaul to help reassure the public.
The Supreme Court released a long-awaited code of conduct early in the term, hoping to put to rest controversies such as the revelation last year that Thomas and Alito took unreported trips funded by wealthy benefactors. Thomas also faced calls to recuse himself from election-related cases because his wife had moved to overturn the results of the 2020 presidential election.
In announcing the code, the court said it wanted to correct a public misunderstanding “that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules.” But experts in judicial ethics panned the lack of an enforcement mechanism or specificity about lavish gifts or when a justice should recuse.
Renee Knake Jefferson, a University of Houston Law Center professor specializing in legal ethics, called the code “ceremonial at best.”
“It does not address the issues that were very concerning to the public,” she said.
Controversy flared anew in May.
The New York Times reported an upside-down American flag had flown at Alito’s Virginia home in the weeks after the attack on the Capitol on Jan. 6, 2021. The symbol has a long history as a sign of distress in the military and has been used by protesters of various political stripes, but at the time it had also been adopted by supporters of the “Stop the Steal” movement and was flown by some rioters at the Capitol.
Alito said his wife, Martha-Ann, had raised the flag following a dispute with a neighbor. The neighbor said in an interview the disagreement began in December 2020 when Martha-Ann Alito made comments about political signs in her yard disparaging Trump and Republicans.
Days after the initial Times report, the newspaper revealed an “Appeal to Heaven” flag adopted by Christian nationalists was flying at Alito’s vacation home on the New Jersey shore last summer.
Democrats and judicial ethics experts said the flags raised questions about Alito’s impartiality. He rejected their calls to recuse from two high-profile cases: on presidential immunity and whether prosecutors improperly charged a Jan. 6 defendant with obstruction.
“As soon as I saw it, I asked my wife to take it down, but for several days, she refused,” Alito wrote of the Virginia flag in a letter to Senate Judiciary Committee members Dick Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.), explaining why he did not believe the incidents met the criteria for him to sit out a case. “My wife is fond of flying flags. I am not.”
Chief Justice John G. Roberts Jr. also refused a call to meet with Democratic senators to discuss ethics, citing the separation of powers and the need for judicial independence.
Alito soon found himself mired in controversy again, when the liberal activist released the recording she made while posing as a Catholic conservative at the historical society event in June. Alito is heard saying “one side or the other is going to win” the nation’s polarized politics and seeming to endorse the activist’s contention that the nation needs to return to “godliness.”
Martha-Ann Alito is heard talking about the flag controversy and disparaging the flying of pro-LGBTQ Pride flags.
That same month, Thomas disclosed for the first time that his lodging during two 2019 trips was paid for by Texas billionaire and Republican donor Harlan Crow. The Senate Judiciary Committee also revealed three additional Thomas plane trips between 2017 and 2021 that were funded by Crow and that Thomas’s attorney has said he was not required to report.
Alito and Thomas did not respond to requests for comment this week.
As the ethics controversies piled up, momentum built among Democrats for Congress to take action on ethics legislation.
While praising steps already taken by the court, Whitehouse called for an independent watchdog that has the authority to investigate alleged violations and enforce the code. He pointed to discrepancies in Alito’s story about the upside-down American flag as a situation that merited a deeper look.
“They are still the only nine people in American government who don’t have to answer basic questions about what the facts are when basic ethics questions get raised,” Whitehouse said of the justices.
In June, Durbin tried to pass Whitehouse’s stalled bill codifying for the Supreme Court a code of conduct, gifts reporting, recusal standards and disclosures about friend of the court briefs. But Republicans scuttled the effort to move the bill through “unanimous consent.”
Robert Ray, the former independent counsel who succeeded Ken Starr in the Whitewater investigation, said the push for ethics overhaul is really a political effort by Democrats to derail a court that has handed conservatives a string of major victories. He said some of the provisions of the bill improperly impinge on judicial authority and are likely unconstitutional.
The justices have largely made the right calls on recusals, Ray said, arguing that it’s the left — not the justices — that is corroding the Supreme Court’s legitimacy.
“What really is going on here is an effort to damage individual justices or the Supreme Court as an institution because one side of the political divide doesn’t like the results of the decisions the Supreme Court has rendered,” Ray said. “That’s a particularly obnoxious and objectionable way of going at things.”
Reps. Jamie Raskin (D-Md.) and Alexandria Ocasio-Cortez (D-N.Y.) on June 25 introduced a bill to cap gifts to justices at $50, the same limit in place for Congress. They also shot a letter off to Roberts demanding he answer questions about what he is doing to address the ethics concerns. More recently, Ocasio-Cortez floated a plan to impeach justices, and House Democrats floated a constitutional amendment to overturn the court’s presidential immunity decision.
Gabe Roth, the executive director of the court oversight group Fix the Court, said 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 entanglements,” Roth said. “We have moved to that place, and I think that’s positive given how powerful the justices are.”
