Is the Ubiquitous Supreme Court Out of Line? Commentary on the Case of the Texas Unconstitutional Anti-Abortion Law

The Supreme Court’s power and authority is about to be abused by the conservative majority. The question is not whether the American public is willing to discipline the court for being out of line, but how much they are willing to do so.

The court is in danger of being lost if it runs far away from the public, or if it begins to treat the public and its representatives as mere subjects, rather than partners.

The way the court went about eliminating the federal right to abortion is a prime example of this misuse of its power. First, the right-wing justices used the court’s “shadow docket,” which refers to orders issued in response to emergency applications without open hearings or any public explanation, to allow an obviously unconstitutional anti-abortion law in Texas to stand. They agreed to hear the Mississippi challenge that doesn’t ask them to overturn Wade. When they chose to do it anyway, the majority opinion, written by Justice Samuel Alito, cherry-skimmed past examples and trashed the work of earlier justices who had weighed the same constitutional questions carefully for decades.

Or, as Justice Amy Coney Barrett said last year while speaking to an audience at the McConnell Center at the University of Louisville, “this court is not comprised of a bunch of partisan hacks.”

That the justices are discussing the legitimacy of the Supreme Court in the open is reason enough for us to discuss the legitimacy of the Supreme Court as well. The comment from Thomas that the court is illegitimate because of the inside baseball leak is related to the public unhappiness with its decisions, rather than being related to the leak. In a similar disconnect, Roberts and Alito both take for granted the legitimacy of the Supreme Court and its decisions, as if its power were inherent to the institution — part of the natural order of things rather than something that’s been mediated by politics throughout the court’s history. Roberts asserts the right to say what the law is, as if the institution itself is accountable to no one but itself.

The attorney is a member of the board of contributors for USA Today. You can follow him on social media. The opinions expressed in this commentary are his own. Read more opinion at CNN.

The Supreme Court isn’t Always Live: How the Public Perception Of Its Courts Peers And Judges Perceives It

Oral arguments resume at the Supreme Court next week, with student debt relief, immigration and labor relations among the cases on the agenda. The top US court will hear from some of the country’s best attorneys on topics that impact daily lives of Americans.

Some legal experts agree with Sotomayor and think live cameras in the courtroom will result in lawyers performing for the cameras or protesters disrupting the court’s proceedings. They don’t understand that the justices can manage their own proceedings with the help of marshals and court officers. And, frankly, if dysfunctional behavior does break out in the court, the public should be able to see and judge it for themselves.

But many people can’t or don’t know how to readily access those transcripts, which in any case, don’t convey tone of voice, body language and other nuances of the exchanges between the justices and attorneys appearing before them during oral arguments.

Competition for seats is fierce, and can sometimes be so intense that you have to camp out the night before to get into the venue.

Why should the well-connected only have access to oral arguments? Or to people who live in or near Washington, DC, and who may be in a position to spend hours at the Supreme Court?

Americans have shown they are willing to pay attention to politics when given a chance, so there can be little doubt about public interest. Millions of people tuned in for the January 6 committee hearings, for Trump’s first impeachment trial and for his second second impeachment trial.

In fact, just the opposite is true, at least in terms of the public’s perception. The Supreme Court’s trust is at an all time low. According to Gallup, only 4 in 10 Americans say they approve of how the Supreme Court is handling its job; nearly 6 in 10 disapprove.

In his annual report on the state of the federal judiciary, Roberts failed to address controversies swirling around the court, including last year’s leak of a draft copy of the Dobbs decision prior to its official announcement; a New York Times report alleging the leak of the 2014 Hobby Lobby opinion; and efforts by Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas, to get Republican officials to challenge the outcome of the 2020 presidential election – which Thomas said after the fact that she regretted.

Bringing transparency to the court’s decision-making process would be a good thing for the public and the court. The institution can only get better by opening its deliberations to greater public scrutiny.

Ginni Thomas’ lawyer, Mark Paoletta, suggested in testimony last year before a US House subcommittee that the Supreme Court could continue with the current practice of consulting with, rather than formally following, existing code that covers lower-court judges. During an April 2022 hearing titled “Building Confidence in the Supreme Court through ethics and Recusal reforms,” Paoletta said: “There is nothing wrong with ethics and recusals at the Supreme Court. Justices are ethical and honorable public servants. This vicious political attack on the Supreme Court would make it necessary for reform legislation to be supported.

The public pressure is likely to spur changes. CNN spoke to court sources who claimed that internal discussions, which have been going on for two years, have resumed. The timing of any public resolution is uncertain, however, and it appears some justices have been more hopeful than others about reaching consensus.

Legislation was re-introduced on Thursday that would create a code of ethics for Supreme Court justices. A similar bill failed last year, but lawmakers say the increasing public criticism could give the legislation more traction.

The ABA and House of Delegates are known for their policy-making, not for being critical of the high court. The House of Delegates is associated with establishment positions.

The substance of cases and the refusal to address ethics issues evoke an unaccountable court that will rule as it pleases, without regard for public concern.

Gillers called the court’s lack of response “tone-deaf” and said that it had hurt the court’s reputation.

The justices rarely address recusal, that is, why they decide to sit out a case or are hearing one that critics say could pose a conflict. Their disclosure filings include limited information about their finances, those of their spouses and various reimbursements for travel.

The New NYU ethics: Why the Supreme Court should be the embodiment of objectivity, not the case of the U.S. Supreme Court

NYU’s Gillers, who focuses on legal and judicial ethics, traces some of today’s criticism of the court’s ethics to America’s enduring abortion wars and the June decision in Dobbs v. Jackson Women’s Health Organization.

“It’s hard for a lot of people to understand why Roe could be overturned simply because the composition of the court changed,” he said. “Why now, after nearly 49 years of Republicans and Democrats supporting Roe?”

Yet Gillers said the justices’ off-bench behavior and their enduring lack of a formal code of ethics are rightfully being scrutinized and affect the court’s stature.

So, for example in 2018, more than 80 complaints filed against US appeals court Judge Brett Kavanaugh, arising from his tumultuous Supreme Court nomination hearings, were summarily dismissed after the Senate confirmed him as a justice.

The 1980 judicial conduct law that excludes the nine justices was cited by Timothy Tymkovich, who wrote the judicial council’s dismissal of those complaints.

As he introduced new legislation Thursday, Sen. Dick Durbin, chairman of the Senate Judiciary Committee, said in a statement that “the Supreme Court of the Unites States ought to be the embodiment of objectivity.”

Roberts said lower court judges can substitute for one another. If a district court or appeals court judge takes a break from a case, another federal judge can serve in their place. If a Justice withdraws from a case, the Supreme Court will have to sit without their full membership. A Justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy.”

Source: https://www.cnn.com/2023/02/09/politics/supreme-court-ethics-reform/index.html

Roberts Embedded in the First Major Health Care Reform Dispute: “It is a Wonderful Life,” said Roberts

At the time of Roberts’ 2011 statement, outside critics were questioning whether Thomas and Kagan should sit on the first major dispute over the Affordable Care Act – Thomas because of his wife’s opposition to the 2010 health care law and Kagan because of her prior work in the Obama administration.

Roberts wrote, without addressing the justices directly, that he has complete confidence in the ability of his colleagues to determine when recusal is needed. They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process.”