High Court, low standards and a crisis of confidence

The Supreme Court has lost considerable credibility; it has little to do with the much-hyped leak of a preliminary draft ending any constitutional protection for the right to an abortion.  

Before any leak, there has been a steady slide in the court’s standing. Last year the Gallup poll showed that by 53 percent to 40 percent the public disapproved of the way the court was handling its job, a precipitous drop. Last month in an Associated Press-NORC survey, only 18 percent of the public said they had a “great deal of confidence” in the high court.

The court is viewed as excessively political — because it is.

Senate Republicans violated the norms to stack the court with conservatives. There is an arrogance to lifetime appointees. Their ethics rules are more lax than those of the legislative and executive branches — and there are instances of justices who refuse to recuse themselves when there is a clear appearance of conflict of interest.

“The American people are rapidly losing faith in their Supreme Court,” says Sen. Sheldon Whitehouse (D-R.I.), a member of the Judiciary Committee. “They see Justices guided by politics and big special interests and a judiciary with weak ethics and transparency rules. We need to address these problems before the court’s reputation is damaged beyond repair.”

All this predates the May 2 leak of a draft opinion by Justice Samuel Alito overturning almost a half century protection of the right to an abortion. That leak may have been unfortunate and certainly is harmful to internal deliberations.

But it isn’t like the Chicago Tribune leak in 1942, during the battle of Midway, that the U.S. had broken the Japanese code. It isn’t even as harmful as recent leaks that U.S. intelligence helped the Ukrainians destroy a Russian ship and to kill Russian generals. For all the conservative fury — a Republican senator called the leak “despicable,” and a pundit said it was in the same “spirit” as the deadly Jan. 6 mob assault on the Capital ­— it doesn’t even appear to be a crime. (I would have published all these stories; others can decide whether the leakers, if discovered, should be punished.)

More troubling is a politicized court not holding itself to the highest standards. There are no enforcement rules for justices recusing themselves when there’s a conflict. Federal law states judges should recuse themselves when their “impartiality might be reasonably questioned,” including interests of a spouse. But it’s up to the individual justice to determine when applicable.

Justice Clarence Thomas’s wife, Ginni, was deeply involved in the effort to overturn the 2020 election, calling it “the greatest Heist of our History,” and attended a rally before the Jan. 6 storming of the Capitol. Yet Justice Thomas not only didn’t recuse himself but voted to block the House investigating Committee from obtaining records on the effort to overturn the election.

When Amy Coney Barrett was nominated right before the 2020 election, Americans for Prosperity, the political advocacy arm of Charles Koch, mounted a national ad campaign to help her win confirmation. The next year in a case centering on the non-profit arm of Americans for Prosperity and disclosure, Barrett voted with her earlier benefactor.

Moreover, the ethics and disclosure rules have a loophole for the Supreme Court: Unlike the Congress or the Executive branch, there are no clear rules whether justices have to report any interest that might give them personal hospitality like free trips to a hunting lodge.

Last year, Sens. Whitehouse and Lindsey Graham (R-S.C.) wrote Chief Justice John Roberts that the “Justices of our highest court are subject to the lowest standards of transparency of any senior officials across the federal government.”

Nothing has changed. 

The conservative majority also has taken to greater use of the “shadow docket,” supposedly for emergency or procedural issues, where a decision with little consideration, is handed down. Last year, the Court — by 5 to 4 — hurriedly left in place a Texas law that banned all abortions after six weeks until further consideration. Justice Elena Kagan, dissented, complaining that this is “emblematic of too much of this Court’s shadow-docket decision-making which everyday becomes more unreasoned, inconsistent and impossible to defend.”

Unlike most of government, the Supreme Court is not subject to the Freedom of Information Act.

The context, of course, is the shady way this six-member majority was created. (Chief Justice John Roberts is less given to political considerations.) In early 2016 President Obama nominated Merrick Garland for a vacancy. The Senate Republican majority wouldn’t even permit a hearing for nine months, when the nomination died. “In a few short months we will have a new president and a new Senate,” Sen. Tom Cotton (R-Ark.) argued that March, a typical defense of this tactic. “Why would we deny voters a chance to weigh in on the make-up of the Supreme Court?”

When liberal Justice Ruth Bader Ginsburg died in September 2020, within a few days Cotton and his GOP colleagues forgot about their concern for the voters. “We will move forward without delay.” Justice Barrett was confirmed, on a party line vote, eight days before Joe Biden was elected President. 

Supreme Court actions are the law of the land, like them or not. But when the court itself loses respect, it undermines confidence in its legitimacy.

Al Hunt is the former executive editor of Bloomberg News. He previously served as reporter, bureau chief and Washington editor for The Wall Street Journal. For almost a quarter century he wrote a column on politics for The Wall Street Journal, then The International New York Times and Bloomberg View. He hosts Politics War Room with James Carville. Follow him on Twitter @AlHuntDC.