Trust in the Supreme Court is down – but there’s no easy way to monitor the justices and their politics

Recent evidence showing **JL: That Virginia Thomas, wife of United States Supreme Court Justice Clarence Thomas, sent at least 29 text messages to former White House Chief of Staff Mark Meadows urging him to helping to overturn the 2020 election reignited a long-running debate about judicial ethics and the nation’s highest court.

Fair and impartial judges are essential to the health and legitimacy of the judicial system and are an essential part of the system of government established in the United States Constitution.

In the past, the actions of liberal and conservative judges have raised questions about the court’s ethical standards. Justice Stephen Breyer’s wife owned personal shares in a company involved in a Supreme Court case, for example, and former Justice Antonin Scalia went duck hunting with the then Vice President, Dick Cheney, in 2003, when the court was considering a case centered on Cheney.

Legal scholars and experts have debated whether some judges should have voluntarily withdrawn from particular cases given potential conflicts of interest.

As a Supreme Court scholar, I think it is important to recognize that there is no formal code of conduct guiding the work of the Supreme Court, which contributes to a lack of clarity around the boundaries ethics of judges.

Supreme Court Justice Stephen Breyer administers the judicial oath to Justice Ketanji Brown Jackson in June 2022.
Fred Schilling/United States Supreme Court Collection via Getty Images

A code of ethics for some judges, not all

Unlike Supreme Court justices, other federal judges follow a code of conduct developed by the Judicial Conference, a government policy-making group for lower federal courts.

The code sets out ethical principles for judges, saying they must remain independent and refrain from political activity, such as donating money to a political candidate.

The code also provides a process for considering whether and when judges should not participate in a case due to a conflict of interest.

But the Judicial Conference has no authority over the Supreme Court.

Thus, as Chief Justice John Roberts pointed out, the code does not apply to the Supreme Court – and does not “adequately address some of the ethical considerations unique to the Supreme Court.”

A federal law applying to both Supreme Court justices and lower court judges states that judges must withdraw from a case when their “impartiality could reasonably be called into question.” This process is known as recusal.

Although this law applies to Supreme Court judges, it does not cover other areas, such as political activity, which are part of the code of conduct for lower court judges.

It is also difficult to enforce this law with Supreme Court justices, as there is no higher judicial body in the country that can review the actions of judges. Congress could pursue the removal of a judge for violating this law. But, as is the case with other government officials, if the House of Representatives votes to remove a judge, removal from office still requires a two-thirds vote of the Senate – a very high order.

Designed for independence – not responsibility

The United States Supreme Court was designed to operate differently from the legislative and executive branches.

Presidents appoint Supreme Court justices to lifetime positions, allowing them to make decisions independent of politics and the pressure of elections — even if those decisions are sometimes unpopular.

The framers of the United States Constitution developed significant constraints on the court that were intended to counterbalance this lack of public accountability.

For example, the country’s founders noted that the judiciary must rely on Congress for funding and lacks an army or other mechanisms to directly enforce its own decisions.

Some scholars argue that because of this, the court tries hard not to stray too far from public opinion, because it could damage people’s respect for the court – and its authority.

If people don’t think the tribunal is legitimate, its decisions might be ignored or not fully enforced.

Declining public support by the court

Several polls show that public support for the Supreme Court has fallen to historic lows, even before the court’s controversial abortion rights ruling in June.

A July 2022 Marquette Law School poll showed that 61% of individuals disapprove of the court’s work. That same poll showed 60% of people approved of the tribunal in July 2021.

Several factors contribute to this decline in esteem for the court.

There is a growing perception that partisan politics – rather than neutral legal analysis – drives the court.

In September 2019, 50% of the public rated the court as “moderate”, while only 21% reported it in July 2022. Over the same period, the percentage of those who rated the court as “very conservative” is increased from 5% to 34%.

The June 2022 Supreme Court decision to overturn Roe v. Wade also contributed to the perception that she became more political – in part because she represented a major policy shift. It also relates to the fact that some judges made comments during their confirmation process that were interpreted to indicate that the constitutional right to abortion was established law – and then voted to overturn that protection.

Women in line join arms and stand in front of the United States Capitol
Democratic lawmakers take part in an abortion rights rally on Capitol Hill on July 19, 2022.
Oliver Contreras/For The Washington Post via Getty Images

A drying up “reservoir of goodwill”

Scholars have shown that the Supreme Court has a substantial “reservoir of goodwill” that has insulated it from the long-term effects of past controversial decisions, such as Bush v. Gore in 2000, when the court ruled in favor of President George W. Bush. regarding a dispute over the recount of the elections.

Democratic lawmakers have called on Thomas to recuse himself from court cases involving the 2020 election or the Capitol insurgency on Jan. 6, 2021.

Thomas was the only justice to oppose the Supreme Court’s decision in early 2022 to deny former President Donald Trump’s request to withhold documents from the US House committee investigating the attacks on the Capitol.

“It’s a textbook case to take him out, to recuse him from these decisions,” Minnesota Sen. Amy Klobuchar said.

Thomas did not indicate whether he would recuse himself from future cases on this issue.

This position, combined with public opposition to the court’s abortion decision and low levels of general public approval, suggests that the court may be testing the limits of its “reservoir of goodwill”.

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