Where are the checks and balances against the Supreme Court? 

There was a time when Chief Justice John Roberts seemed to care about the U.S. Supreme Court’s integrity and the American people’s trust. That is evidently no longer the case. 

Last year, after ProPublica broke stories about two justices who received but did not report favors from billionaires, concern grew that the nation’s highest court had no explicit ethics code for its members. 

In November, the nine justices responded with 14 pages of “canons” and commentary — a step forward, no doubt. But because there is no enforcement mechanism, the “code” amounts to guidelines rather than the strict ethics rules and sanctions that apply to all other federal employers and judges. Those rules prohibit federal officers from even the appearance of conflicting interests. 

In their commentary, the justices argued they cannot always be bound by the usual ethical constraints and remedies, including the obligation to recuse themselves from cases where they have actual or apparent conflict of interest. “The loss of even one Justice,” they wrote, “may undermine ‘the fruitful interchange of minds which is indispensable’ to the court’s decision-making progress.” 

But when one or more justices are conflicted, the “fruitful exchange” is tainted. We would hope that conflicts of interest are rare, but the new guidelines seem to imply that ethical disputes are so common that the justices’ decision-making process could collapse. 

Because of their wives’ controversial activities related to the January 6 Capitol riot, Justices Samuel Alito and Clarence Thomas are under pressure to recuse themselves from cases concerning that event and the broader attempt to overturn the 2020 election.   

The justices’ guidelines state, “The rule of necessity may override the rule of disqualification.” But the overriding necessity is that the justices do their jobs without fear, favor, political pressures, bribery and other perverse influences. 

The next test of the court’s objectivity is due any day, because it is scheduled to go into recess at the end of the month. The justices decided in February to consider Donald Trump’s claim that he is immune from prosecution for any crimes he committed as president. But they “slow-walked” the case, delaying oral arguments until April and a decision until this month. 

Whatever they decide, they have already handed the presidential contender a victory while defeating themselves in the court of public opinion. The impression is inescapable that they collaborated with Trump’s plan to avoid trial before the election in hopes that he can pardon himself if he wins.   

The current justices have shown they can act promptly when the need arises. A case in point was their timely ruling in March that Trump had not disqualified himself from state ballots under the 14th Amendment. If the justices had employed similar speed on Trump’s immunity claim, his trial could have gone forward in March, and the verdict might have dissuaded him from trying to sabotage November’s election.  

With Alito and Thomas stubbornly refusing to recuse themselves, Democratic members of the Senate Judiciary Committee requested a meeting with Roberts. He “respectfully declined,” explaining it’s rare for a sitting chief justice to meet with lawmakers. “Separation of powers concerns and the importance of preserving judicial independence counsel against such appearances,” Roberts wrote. 

This excuse insults common sense, Congress, the Constitution and the intelligence of anyone who suffered through an elementary school civics class. 

While it is correct that each of the three branches of the federal government has separate powers, they are not independent. The Constitution makes them accountable to one another. Its checks and balances are designed to keep all three branches from abusing their powers. As one editorialist observed, Roberts’s argument means “The elegant scheme of ‘checks and balances’ Miss Dooley taught you in seventh grade no longer applies, and we’re not sure where we stand.” 

Article III of the Constitution allows Congress, for example, to limit the topics on which the Supreme Court rules by stripping the federal courts of jurisdiction. Surprisingly, we have yet to hear much discussion about using Article III regarding abortion rights. 

Congress can also impeach and remove federal judges and justices. They have lifetime appointments, but Article III says that judges “hold their office during good behavior.” The American people clearly feel the justices have violated that standard. Two-thirds of adults disapprove of the court’s performance. 

As the Christian Science Monitor’s Henry Gass points out , “Four years ago, the Supreme Court of the United States was, by far, the most trusted institution in Washington. Now, as the High Court nears the end of another potentially seismic term, public trust in the Court has eroded. Partisanship has been a principal driver of the loss of trust.” 

The House of Representatives, where impeachment resolutions seem to be in fashion, might consider resolutions against Alito and Thomas. Chances are nil that the Republican-controlled House would pass them, but it would be a shot across the high court’s bow. It would signal to Chief Justice Roberts that if he won’t protect the court’s reputation for fairness and impartiality, others will. 

William S. Becker is co-editor of and contributor to “Democracy Unchained: How to Rebuild Government for the People,” and a contributor to the sequel, Democracy in a Hotter Time. A former senior official in the Wisconsin Department of Justice, he is currently executive director of the Presidential Climate Action Project.