Our not-very-serious U.S. Supreme Court

In his last conversation with them, “Succession” patriarch Logan Roy tells his four adult children, “I love you all, but you are just not serious people.”  Recently I, and many other Americans, are feeling the same way about the members of our U.S. Supreme Court.

Serious people adhere to commonly accepted norms of conduct. They do so not because of altruism, but in order to get along. Serious people know that for most of us it’s necessary to do things like tell the truth and accept responsibility for personal actions. Just as Logan Roy’s kids, protected by their billions, are unwilling to act as serious people, so are the Supreme Court’s nine justices protected by their lifetime appointments. 

There is a line of thinking going back to Eugen Ehrlich, a 19th century Austrian legal scholar, that law is more than just statutes and court decisions. It is also those same norms of conduct that govern our social life and make possible our daily lives and on-going relationships. Acceptance of these norms — morality for lack of a better word — is necessary for acceptance of any public authority. That goes for police, teachers, courts. If authorities don’t play by the same rules as the rest of us, their decisions are first resented and then rejected. 

That’s seemingly the risk the members of the Supreme Court, without a single exception, have chosen to undertake. Based on the court’s constitutional status as an equal branch of government, they claim to be able to accept as much money and expensive favors as they like and decide themselves if they even have to tell other Americans about these gifts. They say the ethical standards used for other federal judges don’t apply to them

Justice Clarence Thomas is, of course, the poster child of the court’s social norms-be-damned decision-making. Among other things, over the past two decades he’s secretly taken well over a million dollars in expensive trips, private school tuition and even free rent for his mother from right wing billionaire Trammel Crow. Thomas says unnamed “colleagues and friends” said he didn’t have to disclose these favors. 

But there are others. The court’s most wealthy member, Chief Justice John Roberts, says he forgot to state that his wife had earned millions in commissions as a head hunter for top notch law firms, many of whom have cases before the Court. Just nine days after he was confirmed by the Senate, Justice Neil Gorsuch sold a mountain vacation home for a tidy profit to the managing partner of a Denver law firm whose lawyers have appeared before the Court over twenty times since then. Gorsuch says he didn’t ask who bought the house so he couldn’t disclose it. 

And it’s not just the court’s conservatives making morally obtuse decisions. In 2010 Justice Sonia Sotomayor received $1.2 million from Penguin/Random House for writing a book. Two years later she didn’t recuse herself from decision making in a case involving the publisher even though then-Justice Steven Breyer did because he also had a book deal with the same firm. 

In April of this year, all nine justices — liberal and conservative — backed Robert’s refusal to appear at a Senate Judiciary Committee hearing to explain the court’s ethics. Roberts said he based his refusal on “separation of powers concerns and the importance of preserving judicial independence.” He appended a statement of “foundational principles” that he said guided justices in making their ethical decisions. Not surprisingly, Roberts’ refusal letter made no effort to explain how members’ acceptance of expensive gifts fit into these “foundational principles.” (Since then, Roberts has said he is looking at ways to improve the public’s opinion of the court’s ethics.)

In the meantime, Justice Samuel Alito has taken Roberts’ defense one step further by asserting that even to question the justices’ ethics undermines the Court’s credibility with the American people.

The court itself has already undermined that credibility. A recent poll revealed that 51% of Americans believe justices base their rulings mainly on their personal political opinions, not on the law. Even among Republicans and conservatives, just half think the justices rule mainly on the basis of the law. And today, just 35% to 37% of Democrats, independents and moderates alike, and 27% of liberals, think so.

Since the Supreme Court has no means to enforce its judgements, its authority depends upon the public’s belief that the court makes decisions fairly and honestly. That belief is threatened as long as justices refuse to comply with ethical standards. 

The best fix for the justices self-imposed problems would be to limit their term in office to, say, 18 years.  Since that’s not going to happen in today’s polarized political environment, a good start would be for Congress to impose an ethical code on the justices and require them, on pain of expulsion, to follow it.  Maybe then Americans would see the justices as serious people, capable of making good decisions.