The Bridge: The Court of Public Opinion

Judging the justices

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We’ll be the judge of that

In a ProPublica report earlier this month, we learned that, for more than two decades, Supreme Court Justice Clarence Thomas has been accepting lavish gifts and trips worth potentially millions of dollars from GOP megadonor Harlan Crow. Not only that, Crow had also purchased property from Thomas. And Thomas failed to disclose this transaction or any of the gifts, despite federal law requiring him to do so. This is a deeply troubling ethics violation.

Andthis is yet another addition to a series of ethics scandals casting a shadow over the Supreme Court. Public scrutiny doesn’t seem to be motivating the justices to exhibit better behavior... but it should.

  • The public is frustrated
  • And the Supreme Court doesn’t seem to care
  • (But they really should)

This is not the first time Justice Thomas has been scrutinized for failing to make financial disclosures. In fact, this isn’t even his only controversy in the last year, as his failure to recuse from cases related to the January 6 insurrection raised eyebrows.

“The issue is that he is not the only one who has allowed a wealthy benefactor to take him on extravagant trips,” Sarah Turberville, Director of The Constitution Project (TCP) at POGO, told me. “The court as an institution thinks that it is beyond reproach.”

This week, POGO sent a letter to the Justice Department, urging the agency to investigate these allegations. If DOJ confirms the reporting on Justice Thomas’s failures to disclose, the government should levy civil penalties against him for violating the Ethics in Government Act.

Read: POGO Calls for DOJ to Investigate Clarence Thomas, Seek Civil Penalties

Trust issues

Several justices who have served in the last decadehave participated in eyebrow-raising behavior. Take then-Judge Brett Kavanaugh seemingly threatening to exact revenge on his political rivals during his confirmation process in 2018, or the late Justice Ruth Bader Ginsburg making disparaging remarks about a presidential candidate in the middle of a heated election in 2016. Sarah and my colleague, TCP Policy Analyst David Janovsky, listed several other instances of serious ethical lapses in testimony last year, and even that was just a sampling.

Given all this misbehavior from the justices, it’s easy to understand why more than half of all Americans disapprove of the Supreme Court. Trust in the institution has plummeted over the years, and the majority of the public no longer believes the court is above partisan politics.

Ivory tower existence

Despite their many lapses in ethical judgment, the Supreme Court has made no move toward adopting a code of conduct, making it the only judicial body in the country without one.

“Because they hold their jobs for life, and because they can’t be held to account by an election, and because, of course, they have no code of conduct, they have no incentive to comport themselves ethically,” Sarah explained. “What we’re talking about is a group of people who really don’t think they have to answer anybody about anything. And that is a recipe for improper activity at best.”

Answerable and accountable

When criticized for their isolation from the public, the justices have argued in the past that their fidelity is to the Constitution and not to the majority’s will. But even though they should have independence with respect to their decision making, they’re absolutely accountable to the public for their conduct.

“The court doesn’t have a standing army or police force to enforce its rulings. They only have the power of reason and the public’s faith in the legitimacy of that reasoning. The court’s power comes from the public having faith in the integrity of their decisions,” Sarah told me. “The public’s faith should mean everything to the court.”

Without the trust of the public, the institution of the Supreme Court has no foundation to stand on. Until they take that accountability seriously, however, there is another way forward.

One thing is for certain

and is worth repeating again and again: If the court of public opinion isn’t enough to motivate the justices to behave appropriately, then a set of rules will. The justices of the Supreme Court need to adopt a code of conduct.

“If we had a code in place, there’d be a means for assessing and reining in this sort of misconduct,” Sarah explained.

Last month, in partnership with Lawyers Defending American Democracy, we released a Model Code of Conduct to propel the conversation on Supreme Court ethics past the question of whether we need a code, and toward the matter of what a code would look like. Our model code requires more stringent disclosure, among many other rules that could help restore the public’s faith in the court.

The public can’t be expected to keep putting their faith in a court with no ethical standards. It’s time the highest court in the land held themselves accountable.