Integrity and Trust — Gone!

Integrity and Trust.  Over the past year or so, the Supreme Court, once the most trusted of the three branches of government, has lost both its integrity and the trust of the public.  I turn to the wisdom of Robert Reich for his ideas on how to restore integrity and trust to the Court …


Three reforms to restore trust in the Supreme Court

On the anniversary of Dobbs, and the revelations about Alito

By Robert Reich

24 June 2023

Trust in the Supreme Court has hit an historic low. A Quinnipiac poll last week found that only 30 percent of registered voters approve of it.

Why don’t Americans trust the Supreme Court?

Because its opinions appear arbitrary, capricious, and partisan. Just look at Dobbs vs. Women’s Health Organization, which reversed Roe v. Wade a year ago today — and with which the majority of Americans disagree.

And because Supreme Court justices have been subject to bribery.

Last week, ProPublica detailed how billionaire Paul Singer, a GOP mega-donor, flew Justice Samuel Alito to Alaska on Singer’s private plane at no cost. The trip would have cost Alito an estimated $100,000, not including accommodation, food, and wine.
 
Alito never disclosed any of this, apparently violating federal financial disclosure rules applying to all federal officials, including Supreme Court Justices.

And Alito failed to recuse himself from participating in a case of financial significance to Singer.
 
In April, ProPublica revealed that billionaire Republican donor Harlan Crow gave Justice Clarence Thomas free luxury vacations and other gifts over a 20-year period, none of which was disclosed by Thomas.

Crow also purchased two houses from Thomas and agreed to let Thomas’s mother live in one of them at no cost. Crow also paid the private school tuition for a student Thomas has described as a person “he is raising as a son.”

Thomas has failed to recuse himself from participating in cases of financial interest to Crow.

Orchestrating these bribes has been Leonard Leo, who last year received an unprecedented $1.6 billion donation to continue his work stacking the courts with ideologically conservative jurists. Leo played a pivotal role in the selection of the three Supreme Court Justices appointed by Trump.

What to do to restore trust of the highest court? Congress should enact three reforms:

  1. A code of ethics

Every other federal judge has to sign on to a code of ethics — except for Supreme Court justices. This makes no sense. Judges on the highest Court should be held to the highest ethical standards.

Congress should enact a code of ethics on Supreme Court justices. It would (1) ban justices from receiving personal gifts from political donors and anyone with business before the Court, (2) clarify when justices with conflicts of interest should remove themselves from cases, (3) prohibit justices from trading individual stocks, and (4) establish a formal process for investigating misconduct. 

  1. Term limits

Article III of the Constitution says judges may “hold their office during good behavior,” but does not explicitly give Supreme Court Justices lifetime tenure on the highest court — even though that’s become the norm.  

Term limits would prevent unelected justices from accumulating too much power over the course of their tenure — and would help defuse what has become an increasingly divisive confirmation process. 

Congress should limit Supreme Court terms to 18-years, after which justices move to lower courts.

  1. Expand the Court

The Constitution does not limit the Supreme Court to nine justices. In fact, Congress has changed the size of the Court seven times. It should do so again in order to remedy the extreme partisanship of today’s Supreme Court.    

Some may decry this as “court packing,” but the real court-packing occurred when Senate Republicans refused to even consider a Democratic nominee to the Supreme Court on the fake pretext that it was too close to the 2016 election, but then confirmed a Republican nominee just days before the 2020 election. 

Rather than allow Republicans to continue exploiting the system, expanding the Supreme Court would actually unpack the court.

***

Enacting these reforms won’t be easy. Big monied interests will fight to keep their control of the Supreme Court.

But these three reforms have significant support from the American people, who have lost trust in the court.

The Supreme Court derives its strength not from the use of force or political power, but from the trust of the people. With neither the sword nor the purse, trust is all it has. 

Fifty Years …

On this day in 1973, exactly 50 years ago, the United States Supreme Court decided in the case of Roe v Wade to decriminalize abortion and give women the right to make decisions about their own bodies.  The vote was 7-2 with only Justices Rehnquist and White voting against it. Until seven months ago, June 24, 2022, we thought we would be celebrating the 50th anniversary of this momentous decision, but instead we are once again fighting to be treated fairly, fighting in many cases for our very lives.

Members of the Supreme Court on April 20, 1972. Front row, from left: Justices Potter Stewart and William O. Douglas; Chief Justice Warren E. Burger; Justices William J. Brennan Jr. and Byron R. White. Back row, from left: Justices Lewis F. Powell Jr., Thurgood Marshall, Harry A. Blackmun and William H. Rehnquist. (John Rous/AP)

Above is the Supreme Court of 1973.  It would be another eight years until the first woman justice, Sandra Day O’Connor, would take her seat on the Court in 1981.  In June 2022, when the decision in the case of Dobbs v Jackson Women’s Health Organization was handed down, there were three women on the Court, and yet women’s rights were slashed.  Six days after the Dobbs decision, a fourth woman, Ketanji Brown Jackson, would take her seat, bringing the number of women on the court to a historic four.

Formal group photograph of the Supreme Court as it was been comprised on June 30, 2022 after Justice Ketanji Brown Jackson joined the Court. Seated from left are Justices Sonia Sotomayor, Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito and Elena Kagan. Standing from left are Justices Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh, and Ketanji Brown Jackson. Credit: Fred Schilling, Collection of the Supreme Court of the United States

Even prior to Roe v Wade, in most states a woman could have an abortion if the pregnancy threatened her life, but since the decision in the Dobbs case, many states have even taken that right away.  The woman is left to die, else forced to travel to a friendlier state where her life is deemed to have some value.

Since the founding of this nation, when it was written in the Declaration of Independence, signed on August 2nd, 1776, that “… all men are created equal,” leaving women out altogether, we have been fighting to be included in that ‘equality’.  Women have had to fight for the right to own property, to divorce their husband, to receive equal pay for equal work, and perhaps most importantly, to vote.  To this day, the nation has failed to pass the Equal Rights Amendment, that would codify equal rights for all citizens, regardless of gender.  The Equal Rights Amendment was first proposed in December 1923, nearly 100 years ago, and still has not managed to pass.  Its history is long and convoluted, albeit interesting.  If you’re interested, check out this article in History.com.

Now, I could make a damn good argument for why I think the Supreme Court made a huge mistake in their ruling on Dobbs, but you likely already know the argument.  Instead, I’d like to pose a question, one that has bothered me ever since I was old enough to ponder such things:

Why are women considered somehow lesser beings than men to begin with?

Is it because of that religious myth that man was created first, and woman was an afterthought created from a rib bone of a man?  Is it because we are typically smaller?  Is it because our voices aren’t as deep?  Is it because we don’t have that all-important extra appendage (I’m trying to keep it family-friendly here so as not to offend)?  Seriously, I have never understood why we are still, after all these thousands of years, considered somehow … substandard.

Women have proven themselves in every field – law, medicine, education, politics, science, business – and yet we are deprived of our rights simply because we are women.  We still struggle against that ‘glass ceiling’ in the corporate world, though we’ve come a long way.  Look at the demographics of the U.S. Congress … the most recently elected House of Representatives has 29% women, and in the Senate, 25% … though women comprise some 50.47% of the population. And this is a 59% increase from a decade ago!  You can probably guess which political party has the highest percentage of women … and it isn’t the Republican Party.

Talk is cheap.  Saying that women have equal rights, but denying them the right to even make decisions regarding their own health choices, is hypocrisy.  A man can walk into a doctor’s office and walk out 15 minutes later with a prescription for Viagra that will enable him to engage in sex all night long if he chooses, but a woman is denied the right to even birth control in many states.  A woman who is raped and becomes pregnant cannot get an abortion in many states today, but must be forced to live with the results of a crime for the rest of her life, while the child’s sire sits in a bar bragging about yet another ‘conquest’.

I don’t understand it, will never understand it, but I know it’s wrong.  Today, we should be celebrating 50 years of Roe v Wade, 50 years of women’s rights, of respect for women.  Instead, we are back to square one … no wait … we are actually at square minus one, because birth control is harder for us to get now, and even in cases where a woman’s life is at risk, abortion is illegal in many states.  We were actually better off 50 years ago.  All thanks to Justices Alito, Thomas, Kavanaugh, Gorsuch, Barrett, and Chief Justice Roberts.  I hope that someday, somehow, it comes back to haunt each and every one of them.