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We Can't Ignore the Supreme Court's Hypocrisy

In 2005, then U.S. Supreme Court nominee John Roberts promised the American people, “It’s my job to call balls and strikes, and not to pitch or bat.” As we near twenty years of the Roberts Court, that folksy image of the neutral, academic Supreme Court Justice, set in his morals of fairness and constitutional reverence, is still nothing more than an image. Following the nominations of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barret which have created a conservative supermajority far to the right of the average American ideology, approval ratings for the Court have reached several all-time lows. First, it was 49%, then 47%, and, most recently, polling suggests Court approval sits around 40%, its lowest rating since 1972. This drop has largely been credited to the Court’s ruling in Dobbs v. Jackson, which overturned the federal right to abortion and allowed state legislatures to gut the right to autonomy, directly contradicting public opinion which wishes to see it protected. 


However, The Court has hardly stopped at abortion. While Dobbs may have been the highest-profile case in recent years, the Court frequently rules contrary to public opinion. They blew a hole in civil rights law in 303 Creative v. Elenis, allowing for discrimination against same-sex couples in public services, despite two-thirds of Americans opposing a business’s right to deny service based on customers’ sexuality. Now, the Supreme Court has no obligation to obey popular will–their non-elected status is a feature that allows them to rule according to precedent and textual analysis–but the Court has shown a complete disregard for legal precedent as well. Justice Clarence Thomas, for example, declared in Dobbs that the Court should reconsider key cases which guarantee Americans the right to use contraception and to have same-sex relationships, both of which are based on decades of legal precedent for the substantive right to privacy. Dobbs is simply the clearest example of a larger trend wherein the Court worships historical precedent and originalist interpretations of the law when it’s convenient and forgoes it when it hinders their political aims. In Dobbs, Samuel Alito cited Matthew Hale, a 17th-century English barrister who popularized the “marital rape exception,” while eschewing originalism in New York v. Bruen, which was heard only a month prior. Former Justice William J. Brennan Jr. prophetically spoke of this hypocrisy in 1985, when originalism began to be misused by Justices, warning that the court may become motivated by “arrogance cloaked in humility.”  


This arrogance manifests not only in the Court’s contradictory interpretations but also in the Justices’ numerous ethics scandals. While the Court may pretend to be above political pressure, Justices frequently accept gifts from dark money organisations and politically motivated individuals. The highest profile example in recent months has been Justice Thomas, who failed to disclose vacations to the Adirondacks, private jet and yacht trips, more than $150k in tuition for his grand-nephew, and real estate transactions that made Thomas and his family hundreds of thousands of dollars, all of which were funded by billionaire Harlan Crow. While most of his dealings are laundering through shell corporations and nonprofits, investigative reporting has found that Crow donated more than $15 million to conservative legal causes, including half a million dollars to Liberty Central, the non-profit where Thomas’s wife, Ginni, then made $120,000 a year. Crow had previously funded opposition to federal election disclosure rules, and it just so happens that his ‘donation’ to Ginni Thomas’s nonprofit was made just before the ruling in Citizens United v. FEC, in which Thomas joined the majority to overturn those same disclosure rules. Thomas declined to recuse himself from the case or to disclose Crow’s decades of donations and gifts. 


Other Justices have financial scandals of their own, as the Brennan Center for Justice found that “​​several justices appear to have exploited their special status, raising important questions about the nature and scope of disclosure laws.” Alito, for one, was ‘gifted’ an Alaskan fishing trip in 2008 by Paul Singer, a hedge fund manager whose company appeared before the Supreme Court 10 times in the following years. Alito never recused himself or disclosed the gift of lodging, transportation, and catering, all of which ran well into the six figures. Justice Gorsuch, after years of struggling to sell his mountain home, had it bought well above market value by Brian Buffy, a law firm CEO whose clients have frequently appeared before the Court, including, controversially, West Virginia v. EPA, which severely kneecapped the administrative state. 


The Justices’ response to these scandalous revelations was their new Code of Conduct, though the Code’s enforcement is still much weaker than any other federal court. Financial disclosures, a primary complaint of ethics scholars and Court critics, were not substantially addressed. Recusals, likewise, have no clear rules or enforcement to encourage more transparency among the Justices. This half-hearted attempt to shift attention from the Court’s myriad scandals is predicated on the idea that these ethical scandals are simply a ‘misunderstanding,’ rather than serious legal and ethical violations. It’s just another veneer of objectivity, not unlike the superficiality of the Justices’ declaration of their unwavering constitutional values, and then casting them aside when they become inconvenient. The Court is not accountable to the public, nor the Constitution, nor to the law. Maybe it’s time to reconsider who should be calling ‘balls and strikes’.

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