"Out of Line" Justices

In the wake of Dobbs, public support of the Supreme Court waned. A September 2022 Gallup poll asked about trust and confidence in the judicial branch — over 53% fell into the “not very much” and “not at all” categories. Only 6 months after the leak of the Dobbs decision to the Associated Press, the Supreme Court was rocked by a whistleblower letter that revealed an individual had been made privy to the outcome of Burwell v Hobby Lobby before it was announced from a donor who had dined with Justice Alito and his wife.

As a result, calls for the Supreme Court to adopt a code of conduct have intensified. The House Judiciary Committee had advanced the Supreme Court Ethics, Recusal, and Transparency Act of 2022 requiring the adoption of an ethics code and to disclose gifts and conflicts of interest. The American Bar Association echoed these sentiments, passing a resolution that urges the court to put in place a binding ethics code akin to that adopted by the Judicial Conference. Shortly after, Senator Chris Murphy and Representative Hank Johnson reintroduced the Supreme Court Ethics Act.

Although Americans are entitled to demand accountability and transparency in their officials, I have always been confused by the outrage towards revelations of Supreme Court justices acting outside of the public's circumscribed expectations. As Senators Whitehouse and Graham, in a rare act of bipartisanship, noted to Chief Justice Roberts, the justices of “[the] highest court are subject to the lowest standards of transparency of any senior officials across the federal government.” It should therefore come as no surprise that the Supreme Court justices, in the absence of any real rules or consequences, would act outside of the conventions we expect of them.

I'm not sure how we know this. That "standards of transparency" are actually determinative of whether people behave with integrity seems to me, as philosophers say, unestablished. And there are "standards of transparency" that I think have historically affected Justices' conduct in my experience—like what will the Washington Post publish a critical column about—that apply to Supreme Court Justices quite strictly. Or did.

Key Areas of Concern

Internal Constraints

Difficulty of Impeachment

Once appointed, justices will only depart from the bench if they resign, die, or are impeached. Of the fifteen judges who were historically impeached, only eight were convicted. Samuel Chase, the sole Supreme Court justice impeached, had been accused of “tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partisan.” He was acquitted and resumed his duties until his death. As such, the risk of impeachment (particularly in the absence of an explicit code of conduct) is not threatening and does not effectively deter justices from overstepping boundaries.

Life Tenure

The life tenure of the justices exacerbates this. This was designed to prevent justices from being swayed by the immediate interests of the president that nominated them and to insulate them from majoritarian interests. However, it also means that they can operate without being constrained to public sentiment or support, and thus do not have to exercise as much caution. Absent any tangible consequences, justices can afford to become lax in adhering to expected conduct.

Faulty Investigations

These issues are compounded by the lack of an objective investigatory mechanism. In the recent investigation ordered by Chief Justice Roberts in response to the Dobbs leak, it was unclear whether the justices or their spouses had been interviewed. The investigation, ordered by one of the nine justices, had therefore exempted the justices from adhering to the same standard. The investigation was conducted by the court’s marshal and the court’s administrative staff, individuals with whom the justices are familiar. The lack of transparency and objective standards naturally creates an atmosphere where justices will be protected from strong scrutiny. The key purposes of insulating the court from undue influence and preserving public trust are undone by the lack of accountability that has enabled judges to exercise their discretion without fear of consequences.

External Influences: Dark Money and Donors

While the nomination and appointment of Supreme Court justices are inherently political processes, the rise of political groups such as the Federalist Society and the dark money groups have led to the appointment of justices who maintain overly close, and sometimes conflicted contact with the benefactors who placed them to achieve their own agenda. While it is customary for presidents to solicit recommendations from regulatory agencies and the American Bar Association, the Federalist Society has played an outsized role in providing consultation and a narrow pipeline of nominees to Republican presidents. Six of the current justices are affiliated with the Federalist Society, three of whom were nominated by President Trump. The Federalist Society itself had been tasked with the job of vetting candidates for President Trump’s shortlist and its vice president Leonard Leo was reported to have worked closely with White House counsel Don McGahn during the nomination process.

Furthermore, influential donor groups such as the Judicial Crisis Network have played an active role in obstructing or promoting candidates from nomination to appointment, thus shaping the policy goals on the bench. JCN spent $7 million opposing the appointment of Merrick Garland and more than $30 million in lobbying efforts to support President Trump’s appointments. Such efforts engender close relationships and potential obligations which justices may owe to these groups, hence creating opportunities for conflicted relationships to intervene in judicial decisions or even the leaking of confidential information. In the absence of deterrence mechanisms in the internal structure of the Supreme Court, these groups can tug on the justices' robes and demand for favors without consequences of any of the parties involved.

Conclusion

William H. Taft once remarked that the justices" [have a] constant consciousness that [they are] high-priest[s] in the temple of justice and is surrounded with obligations of a sacred character." However, this consciousness is eroded by the internal structure of and external influences on the Supreme Court. Without constraints on lobbying and donations involved in the appointment process, nor the creation of a code of conduct or reformed rules that would restrain unchecked discretion inside the judiciary, one must accept these as risks of the judicial structure we have received. I am just surprised that it has taken so long for such calls of reform to reach their current pitch of frenzy.

"Pitch of frenzy" might not be the moment in which to expect sound policy to be made in the negotiation between co-equal branches of federal constitutional government. Whatever legislation Congress makes and the President signs, its effect on the Supreme Court depends on the Court itself. Because the Court always exists in political context, because the division between "politics" and "law" (let alone "constitutional law") is mere fiction, we should expect the reality of politics (in large and small senses) in the Supreme Court building just as it is in Congress, the White House, the Departments of Justice and Defense, and the CIA. None, for different reasons, is at all transparent. What the press can't, won't, or doesn't get remains obscure from the democracy's citizens.

It seems to me that the best routes to improvement lie in different directions. If the theme is whether the Supreme Court's Justices are presently corruptly involved in politics, before or after appointment, some reference to the historical record would be helpful in providing context rather than frenzy. But the present draft takes up the issue as though it were related to Dobbs. This apparent connection needs clarification. Talking about impeachment or the ills of life tenure or the murky Presidential politics of nominations in response to a controversial decision we don't like is not analytically sound. Thirty-one years ago, Pam Karlan and I filed an amicus brief in Planned Parenthood v. Casey on behalf of 178 organizations comprising a significant sliver of US civil society. There is nothing in Justice Alito's opinion in Dobbs that we didn't anticipate and (in my view) answer fully. Dobbs is to me the same abhorrent mistake Pam and I were hoping to avoid half a lifetime ago. But how do we get from wrong decisions to denunciations of corruption?

Does the leaking of a draft opinion or the whispering around of a result somehow get this connection in place? We would need to establish historical context, again, to know. It's not the maneuvering with the White House or the familial and political pressure on Justice Greer that makes Dred Scott repugnant, after all, however important Don Fehrenbacher showed those elements are to the words in the US Reports, or the bodies of the dead at Antietam.

But I think it might be that Dobbs is actually the central issue of the next draft after all. In which case it is not that the Justices have engaged in subterfuge, but rather that they have not. Justice Alito says that the unpopularity of the decision, which he takes for granted, should not weigh in its making. It is in taking that proposition seriously, considering what it means and into what it grows, rather than in arguing ad hominem against the integrity of the Justices who voted for it that the profounder critique is to be discovered.