SCOTUS Crisis of Confidence: Chief Justice Roberts Must Act

Last month the Albert Shanker Institute hosted a virtual event to discuss the Supreme Court. The interest in our country’s highest court has grown dramatically over the last decade. Unfortunately, this interest is grounded in scandal and a serious decline in confidence.

While the headlines about the latest Clarence Thomas scandal are new, the crisis of our nation’s highest court is not. Just last winter the Pew Research Center documented a steep 15 percentage point drop in favorability in the Supreme Court of the United States in only three years, from August 2019 to January 2022. In fact, that same Pew research article pointed out that the “current views of the court are among the least positive in surveys dating back nearly four decades

Indeed, this Supreme Court integrity crisis did not start with Justice Thomas, although he has contributed to it mightily in his time on the high court with billionaire conservative friends lavishing him with gifts and his wife Ginni’s role in the January 6th insurrection. This crisis isn’t just about Justice Thomas. There are unanswered questions about Justice Neil Gorsuch’s property sale disclosure issue and conflict of interest concerns around Chief Justice John Roberts’ wife, Jane Sullivan Roberts’ role as recruiter for top law firms that argue in front of the Supreme Court.

This scandal and the resulting decline in public confidence is happening at a time when the Court has issued, and is likely to continue issuing, staggering decisions taking away freedoms. Last summer the country reeled while the Court upended decades of long-settled precedent on abortion rights, the rights of states to protect children and families from gun violence, the federal government’s ability to regulate the environment, and the separation of church and state. This summer’s term, the Court is likely tackle voting rights and the right of private sector workers to strike.

Given the rapid decline in confidence in the Supreme Court alongside (and largely because of) the seemingly endless ethical questions about multiple justice’s ethical behavior, it is imperative that the Chief Justice of the Supreme Court of the United States actively lead. However, rather than step in to recommend new ethics standards, or even enforce traditional ones, Chief Justice John Roberts is nowhere to be found.

He was invited to Tuesday’s Senate Judiciary Committee by Chair Dick Durbin, D-IL, and turned the invitation down. It’s not just his absence at a hearing he was asked to voluntarily attend. Chief Justice Roberts has been absent in developing any meaningful code of ethics for the Supreme Court to follow despite repeated asks and repeated promises. In his confirmation hearing, Chief Justice Roberts, “If I am confirmed, I will be vigilant to protect the independence and integrity of the Supreme Court.” Where is that vigilance? Both during the US Senate Judiciary hearing and in other reports, judges in lower courts have a documented and binding code of ethics that assists in their vigilance to protect the independence and integrity of their courts. Yet, Chief Justice Roberts has yet to establish a meaningful code of ethics for the Supreme Court of the United States.

“It is the absence of laws leading to political attacks on the justices,” Amanda Frost, John A. Ewald Research Professor of Law at the University of Virginia School of Law, responded to Senator Cory Booker. She went on to explain, “It would be best for the Supreme Court itself to draft a code of conduct for itself…they have yet to take action.”

Lawyers have collectively weighed in as well. At their 2023 winter meeting, the American Bar Association passed a resolution calling on the Supreme Court to adopt their own, binding code of ethics. It is without a doubt needed. The last time a Supreme Court justice resigned after an ethical breach, was when Justice Abes Fortas stepped down in 1969. While serving on the highest court in the country may make you peerless, lawyers, active and retired judges, and judicial scholars—the closest thing our Supreme Court justices have to peers—have called for the Court to adopt a code of ethics. Yet, Chief Justice Roberts has refused to listen and refused to lead.

U.S. Senator Sheldon Whitehouse has reintroduced the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act to bring transparency and accountability standards to the Supreme Court. He has been joined by colleagues as coauthors and members of the House of Representatives, including Congressman Hank Johnson, (GA-04). In this past week, Senators Angus King and Lisa Murkowski have also introduced legislation requiring the Supreme Court to issue its own code of ethics.

Chief Justice John Roberts doesn’t need the U.S. Congress to compel him to develop a code of ethics. He has the power to do so right now as the leader of the Supreme Court. He has chosen not to. His lack of effort and his silence speaks loudly.

During the hearing Republican members of the Senate Judiciary Committee engaged in both sides-isms rather than discussing the issue of the day-- a standard of ethics for the highest court in the land. But what about Sonia Sotomayor’s need to amend her financial disclosure form? What about Ruth Bader Ginsburg’s (may she rest in peace) autographing a decision? If Republican senators cared deeply about these omissions or the appearance of impropriety, they could have addressed it when they last had the majority in the U.S. Senate from 2015 to 2021, especially as Senator Durbin reminded the committee, he first expressed concern 11 years ago.

While the GOP senators may have thought their tactic of both sides-isms and what-about-isms weakened the discussion, it only added evidence. If all justices have had documented issues with accepting gifts, disclosing them, or adhering to a code of ethics that is standard for lower court judges, all the more reason that introducing a code of ethics should be an urgent nonpartisan issue.

The Supreme Court, with Chief Justice John Roberts as their leader, is running out of time to address the questions about their code of ethics on their own. But it is not too late for the Court to act. The right approach would be to design and adopt a meaningful code of ethics and to regularly document their practice adhering to it. If they don’t it, the onus is on Congress, another co-equal branch of government, to compel a code of ethics by the means they have available to them. Chief Justice Roberts must act now on a formal code of ethics to begin restoring confidence in the Supreme Court.