Sen. Dick Durbin, chair of the Judiciary Committee, announced Wednesday that his committee will take up legislation next month to impose ethics reform on the Supreme Court. “The Supreme Court is in an ethical crisis of its own making due to the acceptance of lavish gifts from parties with business before the Court that several Justices have not disclosed,” Durbin tweeted, referring to the latest ProPublica story about Justice Samuel Alito. “The reputation and credibility of the Court are at stake,” he continued.
The reputation and credibility of the court are already shot at this point. Polling has consistently shown a deterioration in public trust in the institution, with large majorities saying they don’t have confidence in the court. The slide started well before revelations from ProPublica about the ethical lapses of Justices Clarence Thomas and Alito, but public confidence plummeted when the court overturned abortion rights last year and has been falling ever since.
Durbin did give a very broad hint to Chief Justice John Roberts; that Roberts could still avoid having Congress dictate how to do his job if he would just “take the lead and bring Supreme Court ethics in line with all other federal judges.” At this point, however, merely telling the justices they have to abide by the code of ethics that all lower courts have to live by isn’t going to be enough.
Alito’s response to the story is enough to prove that. He didn’t even wait for the story to be published, but rushed to The Wall Street Journal to give a prebuttal, based on the questions he’d gotten—and refused to answer—from ProPublica. A man who is shameless enough to claim that an empty seat on a private jet is worth nothing, so his deciding to sit in it couldn’t constitute a gift isn’t going to be bothered to adhere to the rules. They don’t apply to him. Rules are for the other people, not for Alito and those with whom he associates. There’s a hint of that in the ProPublica story. Judge A. Raymond Randolph, a circuit court judge who was also on the trip detailed in the story, didn’t disclose it either. So much for the judicial code of ethics.
The Alito story is particularly bad, even in comparison to Thomas’ long-standing friendship with his billionaire benefactor Harlan Crow, because Alito’s hedge fund billionaire pal, Paul Singer, has regularly asked the Supreme Court to weigh in on his varied business disputes. Crow has plowed millions into various right-wing organizations that had interests in cases before the Supreme Court, but Singer himself had disputes involving billions of dollars that he was asking the court—including Alito—to resolve. Singer also courted Justice Antonin Scalia, who was photographed on a different Alaska trip while making martinis with glacier ice. Scalia also failed to disclose the gifts of hospitality from Singer.
Those three aren’t alone, though, when it comes to disclosure lapses. Roberts himself is the subject of a whistleblower complaint for both failing to disclose his wife Jane’s full income as a headhunter for top tier law firms and for failing to disclose or recuse when her clients come before the court. Speaking of legal spouses, Justice Amy Coney Barrett’s husband, Jesse, expanded his law firm, SouthBank Legal, to Washington, D.C., a year after his wife reached the Supreme Court. His firm represents a couple of dozen Fortune 500 firms and has argued in federal courts. If Barrett has heard any of these cases, we don’t know because she hasn’t disclosed that. She didn’t even identify the name of his law firm in her financial disclosure last year.
A code of ethics for the Supreme Court is a good starting place, but it has to be seen just as that—the beginning of reform. There has to be reform beyond imposing a code of ethics because the court as it is now is corrupted. The Brennan Center just released a paper detailing one solid reform proposal, limiting justices’ terms to 18 years and ensuring that each president gets two appointments to the court per presidential term. It would create a revolving core of justices, giving those whose terms were up the chance to take senior status and still participate as needed either on the Supreme Court or on a lower court.
That’s one very good idea. It wouldn’t just restore balance to court, it would reduce the malign influence of actors like Leonard Leo, the villainous architect of the current conservative Supreme Court, and also the matchmaker for conservative justices and their billionaire benefactors. It would also defang groups like the forced birthers, because court appointments would lose some potency as political issues. Every president getting two appointments per term makes those appointments less powerful, which would be a good thing.
In the immediate term, however, the reality of this court has to be dealt with. Even if Roberts relents and imposes a code of ethics, chances are good at least two of the justices will ignore it. Their influence has to be diluted, and the best way to do that right now is by expanding the court.
The legislation to do just that exists now. That should be the next move on Durbin’s part, taking up that bill.
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We are joined by Christina Reynolds of Emily’s List. Reynolds is the Senior Vice President of Communications and Content at the progressive organization that works on getting women elected to office. Reynolds talks about what she is seeing up and down the ballot this election cycle on the anniversary of the outrageous Supreme Court Decision to take away the reproductive protections of Roe v. Wade.