Supreme Court in crisis: Justices keep digging themselves deeper

When in a hole, stop digging.

The Supreme Court justices can’t seem to put down the shovel. The court’s approval rating among Americans keeps falling, with accelerating perceptions of its partisan decision-making, combined with its lack of transparency. 

On Feb. 5, ultra-conservative Justice Neil Gorsuch spoke to the Florida chapter of the conservative Federalist Society at a convention that was closed to the media.

Put aside whether the site of the meeting, Disney’s Yacht and Beach Club Resort in Lake Buena Vista, invited snickers about a justice in fantasyland. Also set aside that in Trump’s 2016 campaign, he said his judicial nominees would “all [be] picked by the Federalist Society,” and that its leader, Leonard Leo, reportedly played the key role in Gorsuch being Trump’s first Supreme Court pick.

Why the cloak and dagger effort to keep the justice’s speech within the club? As Supreme Court Justice Louis Brandeis wisely wrote more than a century ago, “sunlight is the best disinfectant.” Secrecy invites suspicion.

What did the justice say that was not fit for public consumption? Or was he acting on his belief, written in dissent in July 2021, that the press is now responsible for “the publication of falsehoods by means and on a scale previously unimaginable.”

Today, at a time when the Supreme Court’s prestige is at risk because 62 percent of the public considers the Court’s decisions to be political, Justice Gorsuch sharing the podium with former Trump press secretary Kayleigh McEnnany and right wing Florida Gov. Ron DeSantis seems at best injudicious. Particularly so without any press coverage.

The justifiable flap over Gorsuch’s Federalist Society speech comes on the heels of an important disclosure by D.C. government watchdog, American Oversight: One of its Freedom of Information Act requests just turned up a June 2021 email from right wing activist Ginni Thomas, Supreme Court Justice Clarence Thomas’s wife, saying that “my husband has been in contact with [DeSantis] too on various things of late.”

Mrs. Thomas has drawn attention for having tweeted “love MAGA people” to the “Stop the Steal” demonstrators on Jan. 6, 2021, and for regularly promoting baseless conspiracy theories during the Trump years.

Appearances matter. In public life, perception is reality.

A conservative justice appearing at the same meeting as the reactionary politician with whom another of his conservative colleagues has apparently been in contact intensifies the “stench” of politicization that Justice Sonia Sotomayor recently wrote was threatening the Court.

And Saturday’s event was not Justice Gorsuch’s first rodeo before the Federalist Society or other conservative organizations.

Back in September 2017, he came under fire for speaking to the American Foundation for American Studies at, of all places, the Trump Hotel in DC. “The optics are awful and will harm the court and public confidence in it as a nonpolitical body,” Stephen Gillis, NYU Law Professor of legal ethics said at the time. “Just because he could do it does not mean he should do it.”

Weeks later, in November 2017, Gorsuch took another “victory lap” following his confirmation with a 33-minute speech to the same Federalist Society that he appeared before this past Saturday. He mocked those who called it a secret society, quipping, “If you’re going to have a meeting of a secret organization, maybe don’t have it in the middle of Union Station and then tell everybody to wear a black tie.”

Maybe the justice and the Federalist Society took that comment to heart when they located the most recent meeting at a yacht club and closed the doors to the media.

Let’s be clear: Conservative justices are not alone in making speeches to friendly legal audiences. Liberal Justices Stephen Breyer and Sonia Sotomayor have addressed the American Constitution Society, an organization of like-minded lawyers.

None of this fortifies public trust in the court’s impartiality. But at least those talks were open and video recorded. And both justices appeared with legal scholars, not politicians of their party.

A March 2021 Washington Post poll found that “[w]hen the justices speak at conferences or events alongside prominent politicians, Americans generally think that’s unbecoming of a judge.” So long as it continues to happen, Americans “are likely to have less confidence in the Supreme Court.”

It is possible that the drop in public trust recorded in public polling will trigger the court to act. A January Pew poll found public approval in the court down 15 points from August 2019. The 54 percent approval rating was “among the least positive in surveys dating back nearly four decades.”

Grinnell College National Poll Director Peter Hanson has described the public’s loss of confidence in the Supreme Court as the “nightmare scenario for Chief Justice John Roberts, who has sought to protect the court’s reputation as an apolitical institution.”

Since the individual justices are not taking steps to address this serious threat to the court, it’s time for Roberts to step into the breach.

On Feb. 2, three days before Justice Gorsuch’s appearance at the Disney property, 25 legal ethics scholars wrote to the Chief Justice and asked him to do just that. They called on him impose a code of ethical conduct on members of the high court. Judges on every lower court are bound by such a code, but at present the Supreme Court is excluded.

That code requires that judges avoid “the appearance of impropriety” of the kind created by Gorsuch’s secret speech. They are required to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

The 25 ethicists wrote that rules of professional conduct for the court would help it “transparently address potential conflicts and other issues in a way that builds public trust in the institution.” The Chief Justice needs to take this long overdue step and make justices’ speech making subject to those rules.

The justices have put themselves in hole with the American people. Heeding the ethicists’ counsel would help them stop the digging.

Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not represent Amherst College.

Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy.