The Supreme Court has a legitimacy crisis and you can help to fix it
Why is the Supreme Court a Party of Partisan Hacks? The Case against the Leaky-Court Supreme Court in the Open
For most of the court’s history, it was difficult to predict how a case would turn out based on the party of the president who nominated the justices. The court’s rulings were largely in line with the views of American voters even as the country became more divided. That is no longer the case. The court’s rulings are now in line with the views of the average Republican voter.
As Justice Elena Kagan said in a talk this month at Northwestern University School of Law, “When courts become extensions of the political process, when people see them as extensions of the political process, when people see them as trying just to impose personal preferences on a society irrespective of the law, that’s when there’s a problem — and that’s when there ought to be a problem.”
In the dissent, it was pointed out that the majority overruled them because it has always hated them and now has the votes to dump them. The rule of law is replaced by a rule by the majority.
Or, as Justice Amy Coney Barrett said last year while speaking to an audience at the McConnell Center at the University of Louisville, “this court is not comprised of a bunch of partisan hacks.”
That the justices are discussing the legitimacy of the Supreme Court in the open is reason enough for us to discuss the legitimacy of the Supreme Court as well. And what’s striking about the comment from Thomas in particular is how it roots the challenge to the court’s legitimacy in the inside baseball surrounding the leak rather than public discontent with its decisions that Kagan spoke about. In a similar disconnect, Roberts and Alito both take for granted the legitimacy of the Supreme Court and its decisions, as if its power were inherent to the institution — part of the natural order of things rather than something that’s been mediated by politics throughout the court’s history. Roberts even asserts the exclusive right of the court to say what the law is, as if the institution exists above and beyond the constitutional system, accountable to no one but itself.
USA Today has an attorney on the board of contributors. Raul is on social media. The opinions expressed in this commentary are his own. Read more opinion at CNN.
Why should people have access to oral arguments at the US Supreme Court? An assessment of the public’s perceptions about the judiciary in the era of transparency
Oral arguments resume at the Supreme Court next week, with student debt relief, immigration and labor relations among the cases on the agenda. The top US court will hear from some of the nation’s finest attorneys on issues impacting the daily lives of Americans.
Several of the current justices, including Roberts, Samuel Alito and Elena Kagan, who seemed open to the idea of cameras while they were nominees, changed their minds once they were seated on the bench. Another justice, Sonia Sotomayor, in a 2019 TV interview suggested that introducing cameras might encourage showboating, in an institution that prides itself on its reserve and sense of decorum. “Every decision we make is written, fully explained, fully defended, fully laid out. But you can’t do that and maintain a show,” Sotomayor said.
But many people can’t or don’t know how to readily access those transcripts, which in any case, don’t convey tone of voice, body language and other nuances of the exchanges between the justices and attorneys appearing before them during oral arguments.
And competition for the limited number of seats can be fierce, often involving lining up in the early morning hours – or sometimes even camping out the night before – to be permitted entry.
Why should people be denied access to oral arguments? Or to people who live in or near Washington, DC, and who may be in a position to spend hours at the Supreme Court?
Americans have shown they are willing to watch politics when they get the chance, and there can be no doubt about that. Millions of people tuned in for the January 6 committee hearings, for Trump’s first impeachment trial and for his second second impeachment trial.
In terms of the public’s perception, the opposite is true. The Supreme Court has a low level of trust. According to Gallup, only 4 in 10 Americans approve of how the Supreme Court is handling their job; nearly 6 in 10 disapprove.
When information about the activities of Justice Thomas and Chief Justice John Roberts became public through the US House investigation into the January 6, 2021, insurrection at the Capitol, neither of them responded to press inquiries about potential conflicts of interest.
As the high court grapples with a profound legitimacy crisis, bringing transparency into its decision-making process would be good for the public – and for the court itself. This struggling institution can only be helped by opening its deliberations to greater public scrutiny.
The Judicial Conference of the United States, a policy-making arm of the federal judiciary, would be required to craft a code of conduct for the justices, and the Supreme Court itself, as a result of the proposed Supreme Court Ethics Act.
Pressure may finally spur changes. Court sources have told CNN that internal discussions, which date back at least to 2019, have been revived. The timing of any public resolution is uncertain, however, and it appears some justices have been more hopeful than others about reaching consensus.
The American Bar Association unanimously passed a resolution this week urging the high court to adopt a code of ethics similar to the one they use for lower-court judges.
Unlike liberal groups that have been pounding on the justices to establish ethics rules, neither the ABA nor its policy-making House of Delegates is known for criticizing the high court. The 591-member House of Delegates is more associated with establishment positions than flamethrowing advocacy.
Together, the substance of cases and refusal to address ethics issues evoke an unaccountable court that will rule as it wishes and act as it wants, without regard for public concern.
“There’s almost no willingness to engage with the repeated call from various venues, and now the ABA,” Gillers said, calling the court’s lack of response “incredible, tone-deaf,” and adding, “I think that has hurt the court’s reputation.”
The justices rarely address recusal, that is, why they decide to sit out a case or are hearing one that critics say could pose a conflict. Their disclosure filings include limited information about their finances, those of their spouses and various reimbursements for travel.
Why does a Supreme Court Judge Announce his Nomination Hearing? Some Critics of the NYU’s Gillers, Roberts and Tymkovich
Today, some criticize the court’s ethics to America’s enduring abortion wars and the June decision in Jackson Women’s Health Organization, traces some of the criticism by NYU’s Gillers.
He said that it is hard for a lot of people to understand how the court could decide to overturn a landmark case. Why now, after nearly 50 years of Republican and Democratic support of the abortion pill?
Yet Gillers said the justices’ off-bench behavior and their enduring lack of a formal code of ethics are rightfully being scrutinized and affect the court’s stature.
So, for example in 2018, more than 80 complaints filed against US appeals court Judge Brett Kavanaugh, arising from his tumultuous Supreme Court nomination hearings, were summarily dismissed after the Senate confirmed him as a justice.
US appeals court Judge Timothy Tymkovich, who wrote the judicial council’s dismissal of those complaints, referred to the 1980 judicial conduct law that excludes the nine justices.
As he introduced new legislation Thursday, Sen. Dick Durbin, chairman of the Senate Judiciary Committee, said in a statement that “the Supreme Court of the Unites States ought to be the embodiment of objectivity.”
“Lower court judges can freely substitute for one another,” Roberts wrote in an annual year-end report. “If an appeals court or district court judge withdraws from a case, there is another federal judge who can serve in that recused judge’s place. But the Supreme Court consists of nine Members who always sit together, and if a Justice withdraws from a case, the Court must sit without its full membership. A Justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy.”
Source: https://www.cnn.com/2023/02/09/politics/supreme-court-ethics-reform/index.html
Reply to Comment on Understanding the Affordable Care Act” by R. E. Roberts and G. Kagan [Am. J. Phys. 66, 2011]
At the time of Roberts’ 2011 statement, outside critics were questioning whether Thomas and Kagan should sit on the first major dispute over the Affordable Care Act – Thomas because of his wife’s opposition to the 2010 health care law and Kagan because of her prior work in the Obama administration.
Roberts did not directly address the justices, but said that he has complete confidence in his colleagues’ ability to decide when recusal is necessary. They are jurists of great integrity and experience whose character and fitness have been checked during the appointment and confirmation process.
