The adoption of a complaint mechanism is necessary to ensure better ethical supervision of the judges of the American Supreme Court, even if the highest court in the country assures that everything is in place to avoid new slip-ups. This is what experts interviewed by The Press.
Gabe Roth, who runs Fix the Court, notes that Chief Justice John Roberts’ announcement in November that judges would voluntarily adhere to a broad code of conduct won’t be enough to convince the public that they will comply.
To support his claim, he cites recent revelations concerning Virginia Thomas (known as Ginni Thomas), wife of Justice Clarence Thomas, who was roundly criticized for accepting numerous paid trips from a wealthy Republican businessman.
Mme Thomas wrote to the head of a religious organization in July to thank him for his lobbying efforts to stop the Democratic administration’s proposed ethics reforms for the Supreme Court.
“Let me tell you, you have given courage to several judges. Thank you very, very, very much,” the ultraconservative activist wrote in capital letters in a message sent to First Liberty Institute director Kelly Shackelford.
Mme Thomas said several justices had been depressed by “the lack of Republican or conservative response” to a series of proposals put forward days earlier by President Joe Biden to reform the important court.
I don’t think that [Ginni Thomas] speaks for all the justices of the Supreme Court, but she has the ear of at least one of them. It is appalling to think that some of the members of the Court could oppose the adoption of elementary ethical measures.
Gabe Roth, director of Fix the Court
President Joe Biden said several scandals, including the receipt of gifts from wealthy businessmen, had led the public to question the independence and impartiality of judges on the nation’s highest court and necessitated a binding code of conduct.
The president also mentioned, without naming any magistrates, the need for judges to recuse themselves from any case likely to place them in a conflict of interest with their spouse.
Real cases
A similar situation arose when the Supreme Court was asked to decide whether messages exchanged by Donald Trump’s former chief of staff Mark Meadows, in the period leading up to the attack on the Capitol on January 6, 2021, should be made public.
Unlike his peers, Justice Clarence Thomas ruled in the negative. Subsequent disclosure of messages revealed that Ginni Thomas advocated the idea that the Democratic victory was attributable to alleged fraud and had written numerous times to Mr. Meadows urging the president to oppose the transfer of power.
Another Supreme Court justice, Samuel Alito, found himself in trouble when the media obtained a photo showing that an inverted flag, used as a symbol by the January 6, 2021, insurrectionists, had been placed in front of his house. He said the initiative was attributable to his wife.
Russell Wheeler, a constitutional scholar at the Brookings Institution, also believes that the Supreme Court justices’ stated adherence to a code of conduct appears insufficient to reassure the American public.
It should be accompanied, he said, by a complaints mechanism reflecting that to which other federal magistrates are subject, who are judged by their peers.
What role for elected officials?
Last year, Justice Alito told the Wall Street Journal that members of Congress lacked the power to legislate to frame the Supreme Court without infringing on the separation of powers between the executive, legislative and judicial branches.
According to Mr. Wheeler, Justice Alito is on the wrong track because elected officials already play a role in relation to the Supreme Court by defining in particular its structure and the limits of its jurisdiction.
A committee of respected judges could be set up to handle complaints targeting members of the country’s highest court without compromising its independence, he suggests.
In a similar vein, Gabe Roth notes that it is “ridiculous” for Supreme Court justices to “vaguely” raise the issue of separation of powers to claim that they are beyond the reach of Congress.
Elected officials obviously cannot tell justices how they should rule on a given case, but they do weigh in on a host of issues related to the functioning of the Supreme Court…and could do so to impose basic ethical standards.
Gabe Roth, director of Fix the Court
In the current context of political division, it seems difficult to imagine that Democratic and Republican elected officials could join forces to vote for a reform that would subject the highest court to a complaints mechanism, comments Mr. Roth.
But things could change over time. “It’s not a question of political orientation,” he emphasizes. “Everyone would be better served if the court were made more transparent.”