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Ben Olinsky is the senior vice president of structural reform and governance and a senior fellow on the economy team at the Center for American Progress. He wrote this for InsideSources.com.
During John Roberts’ confirmation hearing as chief justice in 2005, he claimed that the “primary check on the courts has always been judicial self-restraint.” Sen. Sam Brownback, R-Kansas, then queried rhetorically, “If you don’t restrain yourselves, who does?”
Today, we’re watching in real time what happens when our Supreme Court fails to exercise that self-restraint — reports of a “Stop the Steal” symbol flown outside a justice’s home; reports of justices treated to luxury vacations by billionaire benefactors with business before the courts; and evidence of a justice’s wife pressing state officials to reverse the outcome of a presidential election.
And Roberts has yet to acknowledge or respond to the public’s legitimate concerns about the court’s impartiality and lack of accountability.
Even as public confidence in the court’s legitimacy continues to erode in the wake of this reporting, the chief justice has reiterated his alleged commitment to adhering the court to “the highest standards of conduct.” In November, the court released a public code of conduct and chalked its withering reputation to a “misunderstanding” that justices “regard themselves as unrestricted by ethics rules.”
Unsurprisingly, the American public viewed this voluntary code with skepticism. Justice Samuel Alito, meanwhile, has publicly asserted that Congress cannot regulate the court, effectively placing the justices outside the bounds of constitutional checks and balances — and accountability writ large. But those with some remaining faith in our institutions held out hope the court would get its house in order.
This Supreme Court term has proven how misplaced that hope was. Nearly 70 percent of amicus briefs in high-profile cases supporting conservative causes came from groups funded by the same billionaires and powerbrokers who bestowed their largesse on Justices Clarence Thomas and Alito. The new code of conduct would ensure that when justices have financial ties to parties with matters before the court, they recuse themselves from those cases. That has not happened.
Instead, they’ve heard cases that could financially benefit those powerful interests and rewrite the way the U.S. government has functioned for decades. The outcomes of these cases will likely drag the court into the very arena Roberts warned of during his confirmation: “shaping policy” instead of “just interpret(ing) the law.”
More distressing still is Thomas’ and Alito’s involvement in the cases stemming from the Jan. 6 insurrection and attack on the Capitol. We have long been aware of Ginni Thomas’ connection to the so-called “Stop the Steal” movement to overturn the 2020 presidential election. What we didn’t know until recently is that Alito appeared to publicly support that undemocratic effort.
Days after Jan. 6, an upside-down American flag — a symbol of national distress co-opted by insurrectionists — flew outside Alito’s home. Last year, a different banner — the “Appeal to Heaven” flag, which is used by Christian nationalists to show support for Donald Trump — was flown outside his beach house for months. As a Supreme Court justice, he is obligated to prevent even the perception of impropriety or bias, and passing the blame onto his wife is a contemptible excuse.
Given what we know now, no reasonable person could believe Alito or Thomas is capable of impartiality in matters related to the Jan. 6 insurrection. During oral argument in Trump v. U.S., Alito was the most vocal proponent of implementing either full presidential immunity or a rule so narrow that immunity would apply to virtually any act — no matter how egregiously illegal — if deemed “official.”
Any reasonable reading of the court’s code of conduct would suggest that Thomas should have heeded the call for recusal ahead of the argument and that Alito should do so now. But neither have. None of their fellow justices have remarked on this deviation.
With Alito’s defiant refusal to recuse, the question now lies squarely with Roberts. Will he rigorously enforce the code of conduct he so vociferously insisted was necessary to overcome the public’s “misunderstanding” of the court? Or will he allow the court’s legitimacy to continue crumbling unabated as justices with clear financial and political motives decide cases where their lack of impartiality is on full display?
His legacy as chief justice, the future of the court, and even the future of the American experiment rest on the choices he will make in the coming days.
