Challenging the Legitimacy of this Supreme Court: Part II

Despite Chief Justice John Robert’s calls for public respect for the Supreme Court, even when the decisions are unpopular, methinks the Justice doth protest too much. I have struggled with the creeping-to-overwhelmingly-rightwing bias the Court has adopted – including my recent blogs on November 9th Is the United States Supreme Court a Legitimate Tribunal?, November 26th When Legal Books Are Trumped by History Books, an December 5th Schencks for the Memories – The Continuing Delegitimization of the US Supreme Court  – but as more information about the Court spills into the public eye, it is difficult to maintain a notion the Court’s legitimacy.

Applying an absurd notion of “originalism” – that constitutional interpretation must be relegated solely to the time the constitutional provision was enacted (Second Amendment cases, thus, must be decided within the context of flintlocks and muskets) – conservative justices have made a mockery of the Constitution as a living breathing document for the ages. Playing fast and loose with “stare decisis” (the power of judicial precedents), the Court blithefully delegitimizes its own decisions. As Court reporters have noted, there is personal discord among the sitting justices; vitriol is perhaps a better term.

In a January 16th article in the Atlantic, entitled The Supreme Court Justices Do Not Seem to Be Getting Along (subtitled Collegiality is scarce, and tensions are apparent), journalist Steven Mazie notes: “Only the justices are privy to the mood in their private conference room where cases are discussed after the hearings. But what I have seen this term on open display inside the courtroom is an obvious departure from the collegiality of years past.

“The breaking point was clearly Dobbs v. Jackson Women’s Health Organization, the ruling in June that overturned Roe. Several long-standing precedents have fallen in recent years at the hands of the Court’s conservative majority. But in overturning 50 years of abortion rights, the Court was split—and not amicably. The minority did not dissent ‘respectfully’ in Dobbs. Instead the three justices dissented with ‘sorrow’ for the women of America and ‘for this Court.’

Over the summer, discord stemming from the Dobbs decision was apparent in comments by Elena Kagan, Samuel Alito and the chief justice, John Roberts. Roberts responded to charges that the Court was risking its legitimacy by arguing that mere disagreement with a ruling ‘is not a basis for questioning the legitimacy of the Court.’ Two weeks later, Kagan seemed to reply to her colleague, saying Americans are bound to lose confidence in a Court that looks ‘like an extension of the political process.’ Then, days before the 2022–23 term, Alito said suggestions that SCOTUS is ‘becoming an illegitimate institution’ amount to questioning the justices’ ‘integrity’ and cross ‘an important line.’”

But this searing negativity also seems to have pivoted to the inner workings of the Court. Gone are the days when conservative Antonin Scalia and liberal Ruth Bader Ginsberg would vacation together. We are told now of personal slights between the justices, closed doors that used to be open and even hostility among their respective clerks. The three liberal justices, all women, and the balance of the Court just plain do not like each other. The Court has also fallen in the eyes of the public:

“Public trust in America’s courts has fallen to an all-time low, and just 40% of Americans say they approve of the job the Supreme Court is doing, according to a [recent Gallup poll]… Only 47% say they have a ‘great deal’ or a ‘fair amount’ of trust in the judiciary — a 7 percentage-point slide from last year and 33 percentage points below the all-time high of 80% in 1999, a Gallup poll found.

“Along with the erosion in trust, 58% of Americans say they disapprove of the way the Supreme Court is handling its job, while just 40% say they approve… The court’s approval rating tumbled from 58% in July 2020, a period during which the court refused to block a controversial Texas law banning almost all abortions and overturned the landmark Roe v. Wade decision from 1973 that held women have a constitutional right to the procedure.” NY Post (9/29/22)

But as delegitimization of the Supreme Court may be challenged by the Chief Justice, the obvious lack of ethical standards – there are currently no ethical rules for this particular court – seems to sink the very soil upon which this Court is built. Justice Clarence Thomas has no issue ruling on “stolen election,” Presidential exemption from prosecution and required testimony and related criminal cases and investigations, notwithstanding his wife’s direct participation with Trump’s White House effort to overturn the results of the 2020 vote.

The Chief Justice ordered an investigation of the leak of pre-release version of Samuel Alito’s Dobbs majority opinion (reversing Roe vs Wade). Investigators were deep and thorough when it came to administrative workers and law clerks at the Court… but the “investigation” of the justices themselves was casual and merely conversational. A puzzling approach, since the leading supposition of who leaked the document seemed to center on Mr. and Mrs. Alito’s attendance at a dinner of donors to a conservative cause near and dear to the rightwing justices. But it may well have been because the Chief Justice was himself in a precarious ethical challenge.

Writing for the January 31st New York Times, Steve Eder noted: “The chief justice’s wife, Jane Sullivan Roberts, has made millions in her career recruiting lawyers to prominent law firms, some of which have business before the court. Now, a letter sent to Congress claims that may present a conflict of interest… Now, a former colleague of Mrs. Roberts has raised concerns that her recruiting work poses potential ethics issues for the chief justice. Seeking an inquiry, the ex-colleague has provided records to the Justice Department and Congress indicating Mrs. Roberts has been paid millions of dollars in commissions for placing lawyers at firms — some of which have business before the Supreme Court, according to a letter obtained by The New York Times.

“In his letter last month, Kendal Price, a 66-year-old Boston lawyer, argued that the justices should be required to disclose more information about their spouses’ work. He did not cite specific Supreme Court decisions, but said he was worried that a financial relationship with law firms arguing before the court could affect justices’ impartiality or at least give the appearance of doing so… ‘I do believe that litigants in U.S. courts, and especially the Supreme Court, deserve to know if their judges’ households are receiving six-figure payments from the law firms,’ Mr. Price wrote.” Well, at least we now know why Roberts did not demand more on the Alito leak.

There is no question that an enforceable body of ethical rules, perhaps those that apply to every other federal judge in the nation, are desperately needed for the Supreme Court. Since what has devolved with the current panel – a de facto legislature with no oversight or appeal – will never generate the required Senate vote for a removal after a House judicial impeachment, a more objective standard for discipline and recusal is required. After all, since the Court is effectively passing rightwing rulings that could not otherwise pass the Senate, it is all but unlikely that a Senate vote to remove would ever generate the necessary participation of GOP Senators to remove a sitting conservative justice.

I’m Peter Dekom, a lawyer with almost half a century of practice, and, as currently administered, I cannot consider the current United Supreme Court as a legitimate and bona fide court of law.