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supreme court ethics
Alito’s Upside-Down Flag Signals That Our Constitutional System Is in Extreme Danger
A breach of this magnitude—in a case that implicates the health of our democratic institutions, by a justice that hasn’t shown a single shred of contrition—is a fit topic for robust political intervention.
May 23, 2024
In January 2021, the upside down American flag had become a banner for former U.S. President Donald Trump’s effort to block the peaceful transfer of power. Armed insurrectionists carried it into the U.S. Capitol on January 6. Eleven days later, even as National Guard troops still guarded the Capitol and the Supreme Court building itself, Justice Samuel Alito flew the insurrectionists’ flag outside his Virginia home.
This was far more than an act of indiscreet partisanship, troubling though that might have been. We’ve had those before, from Sandra Day O’Connor backing George W. Bush to Ruth Bader Ginsburg mocking Trump. Justices are human, and sometimes they slip up.
No, this was not a gaffe. It was a senior government official hoisting the banner of a violent insurrectionist movement devoted to overturning a core constitutional principle. At the time, there were numerous cases before the court in which the justices swatted away Trump’s false claims of a stolen election.
In response to the latest scandal, Alito has shrugged. That is a powerful demonstration of the dangerously emboldening effects of lifetime power.
And now this term alone, three major cases have been argued that go straight to the misconduct that marked the “Stop the Steal” effort. Already Alito joined the majority in rejecting Colorado’s effort to keep Trump off the ballot because he had engaged in an insurrection. The court is considering a challenge to the use of federal criminal law that could toss the convictions of 350 insurrectionists who stormed the Capitol.
And of course, Alito is part of the Supreme Court’s most egregious intervention on Trump’s behalf—its refusal to allow the timely federal prosecution of the former president. Special Counsel Jack Smith asked for a ruling confirming that Trump is not immune from prosecution in December 2023. Instead, Alito and his colleagues scheduled arguments for the last hour of the term and seemed to make up a doctrine of wide immunity for some criminal misconduct on the spot. Stop the steal? Start the stall.
Alito has long been inscrutably angry, unwaveringly dogmatic, and the most predictably partisan of all justices. But his growing brazenness still shocks. Judges are required to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” There is simply no question that Alito has breached the rules. Of course he should recuse himself from consideration of the Trump immunity case and the other cases dealing with January 6. Of course he won’t.
So in the face of this kind of brazenness, what to do?
To start, Congress must finally pass a binding code of conduct for the justices. The current code, which the court announced in November, is vague and toothless. It was always a bid to forestall congressional action.
Last year, Alito told The Wall Street Journal, “I know this is a controversial view, but I’m willing to say it. No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period.” That’s silly. As my colleagues Jennifer Ahearn and Michael Milov-Cordoba recently documented in a well-timed law review article, Congress has a major role to play in enforcing Supreme Court ethics. Congress can, and repeatedly has, expanded and shrunk the size of the court. It can change the court’s jurisdiction. It has set rules for recusal and financial disclosure. Congress even wrote the justices’ first mandatory oath of office way back in 1789. As Justice Elena Kagan wisely responded last year, “It just can’t be that the court is the only institution that somehow is not subject to checks and balances from anybody else. We’re not imperial.”
Congress can also demand that Alito answer questions under oath, rather than hiding behind incomplete press releases (and his wife). Maybe it can do more.
A breach of this magnitude—in a case that implicates the health of our democratic institutions, by a justice that hasn’t shown a single shred of contrition—is a fit topic for robust political intervention.
And, as we’ve said before, it’s time for term limits. In response to the latest scandal, Alito has shrugged. That is a powerful demonstration of the dangerously emboldening effects of lifetime power. Nobody should hold too much power for too long.
And where is Chief Justice John Roberts? He often purports to be an institutionalist and tries to curate the credibility of the court. He knows that public approval for the high court has plunged to nearly its lowest level ever recorded in polls. That goes beyond a reaction to Dobbs and other activist rulings—it reflects wide public dismay with what has become a partisan institution.
Ultimately, this kind of power grab should be a part of the national debate in our national election. Where is President Joe Biden? He seems reluctant to engage, clinging to an outdated reverence many liberals still have for the court as an institution. But as conservatives taught us for decades, it is entirely appropriate for the Supreme Court, its actions, and its impact, to be a major part of public debate.
The U.S. Flag Code instructs that the upside down flag should not be flown “except as a signal of dire distress in instance of extreme danger to life or property.” Today it is our constitutional system that is in extreme danger—but not in the way Alito and his allies believe. If Alito won’t voluntarily do the bare minimum to protect our democracy, the coequal branches should do everything they can to force him to do so.
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Why SCOTUS’ Code of Conduct Fails to Address Corruption
By issuing this toothless code of conduct, the Supreme Court attempts to circumvent necessary reforms and enables more lavish gifts and lucrative speaking engagements from their wealthy patrons.
Nov 22, 2023
After months of ethics scandals and scrutiny from advocates, the U.S. Supreme Court released a code of conduct on November 15, with all nine justices signing on. According to the opening statement, the justices wanted to allegedly dispel a “misunderstanding that the justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules.”
But the code isn’t fostering understanding; it’s a mere facade, a paper-thin veiled attempt at responsibility that ultimately serves as nothing more than a PR stunt in the guise of genuine accountability. Once rumored ethical concerns have now become regular fixtures in national headlines about clear ethics violations. Deep investigations by multiple outlets have revealed a pattern and practice of questionable behavior. Congress must see through this stunt, conduct a thorough investigation, and enact binding, enforceable federal legislation covering ethics reform and court expansion.
SCOTUS Justices Are Not Sorry About Corruption. They’re Sorry They Got Caught
It’s not a surprise that the code arrives just as the Senate Judiciary Committee is debating subpoenas for Harlan Crow, who has given millions of dollars in gifts to Clarence Thomas, and Leonard Leo, whose wealth influenced a far-right takeover of the court. Public opinion of the court is at historic lows. Congress is responding to public pressure and finally considering action on ethics reform. By issuing this toothless code of conduct, the Supreme Court attempts to circumvent necessary reforms and enables more lavish gifts and lucrative speaking engagements from their wealthy patrons.
Highest Court with the Lowest Ethics Standards
The justices claim they adapted their new code of conduct from rules governing judges lower on the federal bench. But there is a key and glaring difference: The justices make the provisions of their code discretionary, thus enabling the Supreme Court to be the only federal entity not subject to an enforceable ethical code of conduct. Justices further skirt addressing conflicts of interest, misconduct, and when recusal is necessary.
The unenforceable code relies not on congressional or executive branch oversight, but on the justices’ self-reporting and self-regulation. It does not address donor influence or failure to disclose gifts over a specified amount. It leaves recusal for conflicts of interest up to individual justices. There are no procedures for public complaints or any formal reviews or investigations of rule-breaking. In contrast, the lower courts’ rules have multiple references to enforcement and disciplinary procedures, and Bloomberg even suggests that non-SCOTUS justices “divest from financial interests ‘that might require frequent disqualification.’”
We Already Have the Blueprint for a Better Court
Congress cannot continue to allow the Supreme Court to act as conduits for far-right billionaires. We must instead issue common-sense reforms to end the blatant corruption and mitigate the decades of far-right takeover. Luckily, we already have the blueprint.
First, the Senate Judiciary Committee must issue subpoenas to Harlan Crow and Leonard Leo and thoroughly investigate the ethics violations. The U.S. public has a right to know the extent of judicial misconduct and the influence of far-right megadonors on the Supreme Court’s business.
Second, Congress must pass a binding, enforceable Supreme Court ethics bill that outlines clear rules regarding recusals, gifts, and conflicts of interest. The legislation must also outline specific consequences if justices break the code and the body charged with investigating misconduct. Several ethics bills are already being considered, including the Supreme Court Ethics, Recusal, and Transparency Act (SCERT), marked up by the Senate Judiciary Committee earlier this year.
Congress must see through this stunt, conduct a thorough investigation, and enact binding, enforceable federal legislation covering ethics reform and court expansion.
Finally, Congress must rebalance the court by passing the Judiciary Act and adding four seats. Court expansion is the simplest and most effective way to undo decades of conservative court-packing and the far-right takeover of the courts. The Judiciary Act, sponsored by Representative Hank Johnson in the House and Senator Ed Markey in the Senate, already has 65 cosponsors. The ethics crisis is a symptom of deeper institutional rot that can only be fixed through rebalancing the court.
Public pressure to stop this ethics circus is mounting. A Morning Consult poll found 3 in 4 voters support a binding ethics code. Likewise, a Demand Justice commissioned YouGov poll found that 59% of Americans are less likely to “support a congressional candidate who opposes ethics reform at the Supreme Court.” While Justice Samuel Alito claims that congressional oversight of Supreme Court ethics is unconstitutional, he ignores hundreds of years of precedent. There’s a lot of work to do, but momentum and precedent are on our side.
Congress cannot continue to sit back and let the ultraconservative Supreme Court dictate national policy at the behest of their far-right patrons. Now is the time to do their duty, rein in the court’s corruption, and undo the far-right court packing that’s wreaked havoc on our democratic systems.
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Most US Voters Want Stricter Supreme Court Ethics Code
"Americans can see through the court's failed attempt at a code of conduct," said one group. "It's time for Congress to take action and pass actual ethics reform."
Nov 21, 2023
Nearly three-quarters of U.S. voters want federal lawmakers to pass a stricter ethics policy for the nation's Supreme Court, according to polling results released Tuesday by the progressive advocacy group Demand Justice.
The poll was conducted by YouGov after the Supreme Court announced last week that it had formally adopted a new code of conduct following months of outrage over reporting on relationships between right-wing justices and billionaires. YouGov explained to those surveyed that justices have been criticized for failing to disclose taking gifts and travel from political donors.
YouGov also told voters that supporters of a stricter ethics code say the newly adopted policy "has no way to actually enforce the rules" and believe "Congress should continue to investigate corruption allegations," while opponents of congressional action believe members of the court should be "allowed to determine their own rules without interference" and trusted to enforce them.
Across party lines, 74% of voters agreed that Congress should approve a stricter ethics code and continue to probe "the ties between justices and political megadonors," including 90% of Democrats, 70% of Independents, and 57% of Republicans.
In response to the findings, End Citizens United said that "Americans can see through the court's failed attempt at a code of conduct. It's time for Congress to take action and pass actual ethics reform."
As Common Dreams reported when the new code was announced last week, critics have condemned it as a "toothless PR stunt" intended to curb media coverage of potential corruption and "halt momentum for transparency and real reform."
Amid a wave of reporting about Justices Clarence Thomas and Samuel Alito's connections to billionaire megadonors and Leonard Leo—who leads the Federalist Society, a primary force in pushing U.S. courts to the right—Democrats on the Senate Judiciary Committee passed the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act in July.
However, the bill is unlikely to win approval from the full Senate or GOP-controlled House of Representatives. Still, the Senate panel—chaired by Sen. Dick Durbin (D-Ill.)—is expected to continue its probe, possibly with subpoenas targeting Leo and Thomas benefactor Harlan Crow.
Demand Justice was among over a dozen groups that last week called on the committee to issue subpoenas, arguing that "we must learn the full scope of these hidden efforts to improperly influence the Supreme Court and the extent of Justices Thomas' and Alito's ethical wrongdoings."
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