Before she won confirmation as a Supreme Court Justice in 2020, Judge Amy Coney Barrett fielded a question from a senator who wanted to know why the justices wear black robes. “I think the black robe shows that justice is blind,” she responded. “We all address the law the same, and I think it shows that once we put it on, we are standing united symbolically in the name of the law. Not speaking for ourselves as individuals.”
If only it were true. There are 870 Article III judgeships in the federal court system, each appointed by a president of the United States and confirmed by the U.S. Senate. They are said to be the only judges in the world with lifetime appointments. It’s supposed to insulate them from politics, free them from ideological pressures and guarantee that presidents and members of Congress don’t interfere with their work.
Nine of these are the justices of the U.S. Supreme Court. The other 861 are federal district and appellate court judges who must abide by a detailed code of conduct. Other federal employees must abide by ethics codes, too, but not Supreme Court justices. Congress can impeach and remove them from office for misconduct, but that has happened only once since the creation of the federal court system in 1789.
Supreme Court Justices are not above the law, but they should be above reproach. Even with no ethics code, they are honor-bound to maintain public respect for the institution and the people’s confidence in the fair and impartial administration of our laws.
Unfortunately, the current Supreme Court is failing on both counts. Gallup’s latest tracking poll shows 58 percent of Americans disapprove of how the Supreme Court handles its job.
The current controversy over Justice Clarence Thomas’s financial relationship with a wealthy Republican donor doesn’t help. But the more critical problem is the recent rulings that seem to show the court’s dominant conservative majority is not serving justice so much as carrying water for the right wing of the Republican Party. The court’s conservatives are allowing radical ideology to violate their vows of political celibacy.
The court’s conservatives don’t deserve all the blame for politicizing justice. Congress and the two parties have abandoned all pretense that justices are appointed and confirmed based on their experience, character, loyalty to the Constitution and demonstrated fairness in interpreting the law. Instead, elections, luck and mortality rates determine the court’s makeup. Presidents lately are making youth a consideration, too, so their appointees can remain on the job for decades.
But it was Sen. Mitch McConnell (R-Ky.) who showed unapologetically that politics trumps principle when, as the leader of the GOP-controlled Senate, he deprived President Obama of his right to nominate a new justice during Obama’s last year in office.
But back to the current court’s record. It shows little regard for precedent or “settled law.” As the American Bar Association explains, “Respect for precedents gives the law consistency and makes interpretations of the law more predictable and less seemingly random.”
Instead, the court’s conservative majority overturned a 50-year-old ruling and several subsequent concurrences that the constitutional guarantee of privacy applies to women’s reproductive decisions, including the termination of pregnancy. The current conservative majority ruled instead that no such constitutional guarantee exists for abortions, and states should decide whether and under what conditions abortions are legal.
Polling earlier this year showed 3-in-5 Americans believe abortion should be legal in all or most cases, 62 percent believe the Supreme Court based its decision “more on politics than the law,” and 58 percent think lawmakers are paying more attention to donors and their base than to what the majority of Americans want.
In another ruling, the court blocked the Environmental Protection Agency (EPA) from limiting climate-altering pollution from power plants. It justified the decision with the arcane principle that only Congress can authorize regulations with national implications. That took away one of the government’s most effective tools for fighting climate change, and it handed a huge win to the GOP and oil industry’s longstanding effort to avoid any constraints on oil and gas profits.
Another victory for former President Donald Trump and the Republican Party was the court’s repeal in 2020 of the requirements at the heart of the Voting Rights Act. States with histories of racially motivated voting procedures were required to get Justice Department clearance before changing their voting laws. With shocking naivety, the court’s majority claimed that things had changed in the South. They hadn’t. The ruling led immediately to a flurry of new state restrictions on the ability of Black and low-income Americans to vote.
In a decision that gave more political clout to corporations and wealthy individuals — both Republican-leaning constituents — the court ruled they could make unlimited contributions to Political Action Committees (PACs) that don’t have formal connections to candidates. The court acknowledged that big campaign donations buy better access to officeholders, but it reasoned that campaign contributions are not used to buy votes. Several studies agree there is little evidence of vote-buying. Instead, big donors buy influence by helping elect candidates who share their views. For example, research published in Proceedings of the National Academy of Science found that oil and gas corporations take advantage of unlimited campaign contributions to “invest in legislators that have a proven antienvironmental voting record.”
Now, a reignited discussion about Supreme Court reforms includes possible term limits for justices — but changing lifetime tenure would require a constitutional amendment.
At the very least, the Supreme Court should regain some respect by adopting and enforcing a clear ethics code. The principles used by the Department of Justice and the Code of Conduct for United States judges (as opposed to justices) are good places to start.
The most crucial requirement should be that justices shed any sense of obligation to a political party or extreme ideology and put on the black robes that remind them of their profound responsibility as the nation’s final arbiters of justice.
William S. Becker is co-editor and a contributor to “Democracy Unchained: How to Rebuild Government for the People,” a collection of more than 30 essays by American thought leaders on topics such as the Supreme Court’s perceived legitimacy. Becker has served in several state and federal government roles, including executive assistant to the attorney general of Wisconsin. He is currently executive director of the Presidential Climate Action Project (PCAP), a nonpartisan climate policy think tank unaffiliated with the White House.