The most conservative Supreme Court in generations, which is also the most unpopular Supreme Court in memory, is now on trial in the high court of history, before the jury of an increasingly disapproving American public.
Today let’s focus on two critical areas of the law in which the trials of the Supreme Court are the most acute.
The first involves the declining ethical standards of the highest court in the land, and the complete and total lack of any standards to govern members of the court itself, witnessed by the seemingly endless saga of stories involving Justice Clarence Thomas.
It is unacceptable, is it not, that the Supreme Court of the United States has far lower standards for ethics than federal district courts and federal courts of appeals?
Over many years I have sometimes praised Chief Justice John Roberts for trying to steer a responsible moderate course and other times criticized his opinions. At this moment it is imperative that he take a clear position to try to steer the court toward a code of ethics. If he does not, the current ethical lapses could become a major scandal and could become the dark side of his legacy as chief justice.
There needs to be a clear understanding of the full range of gifts, financial relationships and other matters involving Justice Thomas; a clear understanding of any rules or laws that may have been violated; and a clear code of ethics for Thomas and all other justices detailing what is allowed, what is prohibited and what must be immediately and fully disclosed.
The second critical area of the law involves highly intense issues involving reproductive freedom — including both the reversal of Roe v. Wade and now the abortion pill cases — and cases that have negatively affected American democracy, such as Bush v. Gore, Citizens United v. FEC, and those cases surrounding voting rights, voter suppression and gerrymandering.
Because the abortion pill cases are so time sensitive, let me offer a solution for the immediate future, to stabilize what could be a chaotic legal situation and lower short-term pressure on the legal system as a whole, from district courts to Supreme Court.
In the Texas abortion pill case, it should be obvious, based on commonly accepted rules of standing in federal cases, that those who brought that case lack the standing to bring it. They have no obvious material interest in the outcome of that case, beyond their political views of what should happen, so the case should simply be thrown out for a lack of standing. The case could be brought again by a party or parties with the appropriate standing and could proceed from there.
If the court continues the case despite the lack of standing, however, justices should be very careful. They could well be viewed as seeking a decision for political or ideological reasons, which would create a severe legal and political backlash across the nation.
Few matters demonstrate the ethical lapses that increasingly put the Supreme Court on trial than the leaking of the opinion to overturn Roe v. Wade. This disgraceful, unethical and unprecedented action did major damage to relationships between justices and the perception of the American people of the honor and integrity of the Supreme Court.
I would strongly suggest that Chief Justice Roberts and the more conservative justices step back, think carefully, and understand that a restive nation is deeply concerned with the direction of the court.
The Supreme Court is on trial. May the nine justices in black robes act wisely.
Budowsky was an aide to former Sen.Lloyd Bentsen (D-Texas) and former Rep. Bill Alexander (D-Ark.), who was chief deputy majority whip of the House of Representatives.