When you’re in a hole, stop digging.
Supreme Court justices can’t put down the shovel. The tribunal’s approval rating among Americans continues to decline, with accelerating perceptions of its partisan decision-making, combined with its lack of transparency.
On February 5, the ultra-conservative justice Neil GorsuchNeil GorsuchThe ruling class and the Supreme Court The Hill’s 12:30 Report: Strong jobs report surprises economists McConnell seeks to turn the heat down in Supreme Court fight MORE spoke to the Florida chapter of the conservative Federalist Society at a convention that was closed to media.
Set aside if the site of the reunion, Disney’s Yacht and Beach Club Resort in Lake Buena Vista, invited a sneer over justice in Neverland. Let’s also put aside that during Trump’s 2016 campaign, he said his judicial nominees would be “all [be] chosen by the Federalist Society,” and that its leader, Leonard Leo, would have played the key role in making Gorsuch Trump’s first choice for the Supreme Court.
Why the swashbuckling effort to keep the discourse of justice within the club? As Supreme Court Justice Louis Brandeis wisely wrote more than a century ago, “sunlight is the best disinfectant”. Secret invites mistrust.
What did justice say that was not fit for public consumption? Or was he acting on his belief, written in dissent in July 2021, that the press is now responsible for “publishing lies in ways and on a scale previously unimaginable”.
Today, at a time when the prestige of the Supreme Court is threatened because 62 percent The public views the court’s rulings as political, with Justice Gorsuch sharing the podium with former Trump press secretary Kayleigh McEnnany and the right-wing governor of Florida. Ron DeSantis seems misguided at best. Especially without any media coverage.
The justifiable flip on Gorsuch’s Federalist Society speech follows a major disclosure by DC government watchdog American Oversight: One of its Freedom of Information Act requests just revealed a June 2021 email of right-wing activist Ginni Thomas, Supreme Court Justice Clarence Thomas’ wifesaying that “my husband has been in contact with [DeSantis] also on various things lately.
Appearances matter. In public life, perception is reality.
A conservative judge appearing at the same meeting as the reactionary politician with whom another of his conservative colleagues is said to have been in contact intensifies the “stench” of politicization than Justice Sonia SotomayorSonia SotomayorWhite House reveals team for SCOTUS pick With Breyer out, all SCOTUS progressives will be women The Hill’s Morning Report – What’s Putin’s Next Move? FOLLOWING written recently threatened the Court.
And Saturday’s event was not Judge Gorsuch’s first rodeo before the Federalist Society or other conservative organizations.
In September 2017, he came under fire for speaking to the American Foundation for American Studies at, of all places, the Trump Hotel in DC. “The optics are awful and will damage the court and the public’s faith in it as an apolitical body,” New York University law professor Stephen Gillis said at the time. “Just because he could do it doesn’t mean he had to.”
A few weeks later, in November 2017, Gorsuch took another “victory lap » following his confirmation with a 33-minute speech to the same Federalist society before which he appeared last Saturday. He mocked those who called it a secret society, joking, “If you’re going to have a meeting of a secret organization, maybe don’t have it in the middle of Union Station and then tell everyone the world to wear black tie.”
Perhaps Justice and the Federalist Society took that comment to heart when they located the last meeting at a yacht club and closed the doors to the media.
Let’s be clear: Conservative judges aren’t the only ones giving speeches to friendly legal audiences. Liberal judges Stephane BreyerStephen BreyerMurkowski calls on Biden not to pick ‘leftmost’ Supreme Court nominee Supreme Court should look more like America, or else Republicans once thought Pence was criticizing Biden’s pledge to appoint a woman black in the Supreme Court MORE and Sonia Sotomayor have address the American Constitution Society, an organization of like-minded lawyers.
None of this bolsters public confidence in the impartiality of the tribunal. But at least those talks were open and recorded video. And the two judges appeared with lawyersnot politicians of their party.
A March 2021 Washington Post poll found that “[w]When judges speak at conferences or events alongside prominent politicians, Americans generally think it’s improper of a judge”. As long as this continues to happen, Americans “will probably have less faith in the Supreme Court.”
It is possible that the decline in public confidence recorded in public polls will prompt the court to act. A January Pew poll found public approval in court down 15 points as of August 2019. The 54% approval rating was “among the least positive in surveys dating back nearly four decades.”
Grinnell College National Poll Director Peter Hanson described the public’s loss of confidence in the Supreme Court as “nightmare scenario for Chief Justice John Roberts, who sought to protect the court’s reputation as an apolitical institution.
With individual judges failing to take action to address this grave threat to the court, it’s time for Roberts to step into the breach.
On February 2, three days before Judge Gorsuch was scheduled to appear at the Disney property, 25 legal ethics experts wrote to the Chief Judge and asked him to do just that. They called him impose an ethical code of conduct on the members of the High Court. Judges of all lower courts are bound by such a code, but currently the Supreme Court is excluded.
This code requires that judges avoid “the appearance of impropriety” of the kind created by Gorsuch’s secret speech. They are required “to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”.
The 25 ethicists wrote that the tribunal’s ethics rules would help it “transparently deal with potential conflicts and other issues in a way that builds public trust in the institution.” The Chief Justice must take this long-awaited step and make the speaking of judges subject to these rules.
The judges got in the hole with the American people. Heeding the advice of ethicists would help them stop the digging.
Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The opinions expressed here do not represent Amherst College.
Dennis Aftergut is a former federal prosecutor, currently a lawyer for Lawyers defending American democracy.