A previous generation of Supreme Court justices appeared to have the capability for shame.
In 1969, Judge Abe Fortas resigned because he accepted (and repaid) a $20,000 consulting fee from a foundation run by a person convicted of securities fraud.
Whatever Fortas thought of his honor and morals, he understood that the Supreme Court is an inherently fragile institution and that its nine justices cannot afford even the slightest hint of bias or corruption. As the New York Times editorial board wrote on the time, “A judge must not only be innocent of any wrongdoing, he must also be above reproach.” Fortas put the interests of the court and the country above his own and resigned.
That form of modesty is nowhere to be seen on the Court today. The Court is finding latest ways to embarrass itself, thanks largely to the outrageous behavior of two of its most senior members: Justices Samuel Alito and Clarence Thomas, who’re making a mockery of their duty to look no less than neutral and independent. They fail to report lavish gifts, luxury vacations, and payments from wealthy donors to their members of the family, no less than considered one of whom has had dealings with the Court. They openly express partisan views or fail to adequately distance themselves when their spouses express such views.
What they're saying is that they don't care if all this bothers you. Recent polls show that public approval of this dish is at an all-time low, and it bothers many thousands and thousands of Americans. And yet nobody in Washington seems willing to do anything.
This cannot proceed. The Court's refusal to police itself – and its willing permission for some judges to trample on its repute – requires Congress to step in and take far stronger measures to implement judicial ethics and require judges to recuse themselves after they have, or appear to have, clear conflicts of interest.
Clear reasons for rejection
The latest example in an extended list became public last week when the Times reported that an upside-down American flag was seen flying over the front yard of the Alito family home immediately after the Jan. 6 riot incited by then-President Donald Trump. The flag, a transparent pro-Trump statement widely flown by those that believed the 2020 election was rigged, apparently remained up for days, at the same time as the court considered whether to listen to a case difficult the election results. (The court voted not to listen to the case. Alito, like Trump, was on the losing side.)
In an announcement to the Times, Alito blamed his wife, Martha-Ann Alito, for raising the flag. The flag was a response to a dispute with some neighbors. He made no mention of an try to remove the flag, nor did he apologize for the blatant ethical violation. Then on Wednesday, the Times reported that a second flag, the one carried by the rioters on January 6, was raised outside Alito's New Jersey vacation home. Alito wouldn’t answer questions on the second flag or provide an announcement.
On the contrary, he has did not recuse himself from any of the many cases currently pending in court related to January 6, including Trump's claim that he is totally immune from prosecution for his role within the storming of the Capitol.
Thomas could also be much more compromised in relation to Jan. 6. His wife, Ginni Thomas, was involved within the legal effort to rig the election and keep Trump in power. And yet, with one small exception, he has refused to recuse himself from any of the Jan. 6 cases.
Other justices have revealed political bias within the recent past. In 2016, the Times editorial board criticized Justice Ruth Bader Ginsburg for calling Trump a “fake.” She immediately regretted those comments. That was the appropriate response, nevertheless it didn’t undo the alarm bell.
As all judges know, the federal recluse law is evident: “Every judge, magistrate, or justice of the peace of the United States shall recuse himself from any proceeding in which there may be a reasonable doubt as to his impartiality.”
In the Jan. 6 cases, the recusal is unlikely to be an in depth call. At the very least, reasonable people have a right to query Alito's impartiality for failing to lower the upside-down flag, particularly at a time of intense national conflict over a problem that was before the justices at that moment.
Thomas's extreme closeness to his wife (he has described them as “melting into one being”) raises similar doubts about his ability to be impartial. He can be burdened by one other provision of the law that requires a judge to recuse himself if his or her wife “is likely to be a material witness in the case within the judge's knowledge.” That sounds quite a bit like Ginni Thomas, who testified under threat of a subpoena before the House committee on January 6.
What could be done?
In short, Alito and Thomas seem like breaking federal law and destroying the Court's last remaining legitimacy. The challenge is whether or not anyone is willing to do anything about it.
“If there is no recusal in this situation, when a judge is raising a banner in support of a violent insurrection while hearing a case involving a plan to rig the election, is the recusal law a dead letter?” Alex Aronson, executive director of Court Accountability, a justice reform organization, asked me.
That's a good query. The Ethics in Government Act requires the Judicial Conference, chaired by Chief Justice John Roberts, to confer with the Justice Department any case wherein there’s reason to imagine a judge intentionally violated the law. The Attorney General doesn't should wait for a referral, but given the best way the Justice Department under Attorney General Merrick Garland handled the investigation into Trump, I'm not hopeless.
The Supreme Court's recent code of ethics will not be much help either. In fact, it makes matters worse, undermining the authority of existing law and giving judges much more leeway to act with impunity.
Roberts may not have the facility to compel his colleagues to do the appropriate thing, but he does have moral and institutional authority. And yet the brand new code of ethics seems no match for the old code of omerta that justices have followed for generations. As the Times reported, the Alito flag incident soon became known to the court (where, incidentally, regular staffers are prohibited from engaging in any political activity, including putting up bumper stickers), and yet it was suppressed for greater than three years.
The Democrats currently control the Senate, but they’re largely silent and as a substitute send warning letters.
We are faced with completely unacceptable behavior by probably the most powerful judges within the country. At the very least, Congress has the facility to bring this to light, to call and expose the wrongdoers. This can be each a mission of truth-seeking and a public service, showing the American people just how corrupt some judges are.
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