Justice Clarence Thomas is seriously worried about the future of the Supreme Court, and not without reason. Public confidence in the court has plummeted, standing, according to one recent poll, at only around 40 percent. But Thomas is wrong about the cause for the decline. He thinks the problem is behavioral, when it is really institutional.
Thomas’s deep concern was triggered by the recent leak of Justice Samuel Alito’s draft majority opinion in Dobbs v. Jackson Women’s Health Organization, which appears poised to reverse Roe v. Wade. While millions of Americans were appalled at the prospect of losing a constitutional right to abortion, Thomas was mostly troubled by bad manners.
Speaking at a conference sponsored by three conservative think tanks, Thomas blamed the leak on either a clerk or fellow justice. In the old days, he said, nobody would have leaked a single line of an opinion, let alone an entire draft. There was “belief in the court” that made confidentiality sacrosanct. Now, alas, the court has experienced a sort of “infidelity.” You “begin to look over your shoulder,” he explained, which risks “destroying the institutions that are required for a free society.”
Thomas had equally harsh words for the abortion-rights demonstrators who loudly picketed the homes of Justices Alito and Brett Kavanaugh. Conservatives “would never visit Supreme Court justices’ houses when things didn’t go our way,” he said. “We didn’t throw temper tantrums.”
Almost nobody is in favor of disclosing confidences or disturbing the peace in residential neighborhoods, but those phenomena are at best symptoms of declining respect for the Supreme Court. The root causes are more profound, some of which can be traced to the justices’ open disregard for the ethical norms applicable to every other American judge.
As is now well known, the Supreme Court is the only court in the U.S. without a written code of ethics. All other American judges, both state and federal, are accountable for their conduct according to express rules, while the nine Supreme Court justices continue to insist, under the leadership of Chief Justice John Roberts, that they have no reason to adopt a “definitive source of ethical guidance” because they all “follow high ethical standards.”
That assurance has worn thin. The nonpartisan organization Fix the Court has identified more than 50 likely ethical lapses since 2014 by current or former Supreme Court justices, both liberals and conservatives, such as speaking at apparently political or fund raising events, failing to disclose gifts and income, commenting publicly on pending legal or political issues, participating in cases where they or family members held financial or other interests and otherwise failing to recuse in circumstances where their “impartiality might reasonably be questioned.” (Disclosure: Earlier this year I signed an open letter to Chief Justice Roberts, circulated by Fix the Court, urging the adoption of a Supreme Court code of conduct).
In all but a handful of these instances, the justices declined to acknowledge questions from members of Congress or the press, much less clarify or defend their conduct. Is it any wonder that respect for the court has faltered when the justices have collectively acted as though they do not owe the public so much as an explanation for their questionable actions?
Congressional attempts to remedy the crisis of confidence have lately broken down on political lines. Democrats have proposed reform legislation to address pressing institutional issues, with little or no support from Republicans.
Just last week, the House Judiciary Committee passed the Supreme Court Ethics, Recusal, and Transparency Act (SCERTA), which would enact the most comprehensive ethics reforms in many decades. The 22-16 vote was along strict party lines, with every Democrat voting in favor of the legislation and every Republican voting against it.
The major provisions of SCERTA would require the Supreme Court to promulgate its own code of conduct, leaving the specific provisions of the code up to the justices themselves; establish enhanced disclosure requirements for gifts and income; submit recusal motions to the full court, rather than only to the justice in question, and provide written explanations for all recusal decisions, both grants and denials.
None of these provisions should be controversial; they would apply equally to Republican and Democratic appointees. The Republican resistance is therefore somewhat baffling. As recently as 2018, Republicans in both the House and Senate supported the ROOM Act, which provided some of the very reforms – such as a code of conduct and explanation of recusal decisions – now included under SCERTA.
Perhaps congressional Republicans believe they must defend the court’s 6-3 conservative majority at every turn, but that is a mistake. Waning public confidence hurts the majority most of all, as it is their decisions that must meet the test of widespread acceptance.
Meanwhile, Thomas pines for the days before the leaked Alito opinion, when the justices got along without suspicion. “I mean, you trusted each other. You laughed together. You went to lunch together every day.” To Thomas, that was “a fabulous court. It was one you looked forward to being a part of.”
He is oblivious to the true nature of the court’s legitimacy problem, which has almost nothing to do with its internal dynamics (about which nobody else much cares, other than wannabe insiders) and far more to do with its haughty attitude toward public transparency.
Steven Lubet is the Williams Memorial Professor at the Northwestern University Pritzker School of Law. His most recent book is “The Trials of Rasmea Odeh: How a Palestinian Guerrilla Gained and Lost U.S. Citizenship.”