Trust in the Supreme Court is critical to American democracy
And the solution to increasing the public's trust is not a secret
Since 2000, Gallup has been polling Americans, “Do you approve or disapprove of the way the Supreme Court is handling its job?” just over 1.5 times a year. On average, more than half the country (51%) continue to approve of the Supreme Court (SC). Disapproval ratings average just under 40% in the same timeframe. You wouldn’t guess that after reading recent news reports of texts sent by Virginia (Ginni) Thomas, wife of Supreme Court Justice Clarence Thomas, to former President Trump’s chief of staff, Mark Meadows.
No, the current narrative focuses more on the issue that Pew Research Center polled - “Should Supreme Court Justices bring their political views into cases they decide?” Surprisingly, the answer was less than 100%. Eighty-four percent of respondents agreed SC justices should be politically neutral in their judgements, with only 16% responding that SC justices have done a good or excellent job in doing just that. And, as seems to always be the case recently, both Democrats and Republicans were more likely to believe ‘their SC judges’ do a better job of being politically neutral.
Prior to President Trump leaving office, Ginni Thomas exchanged a series of texts to Meadows in a futile effort to overturn the legitimate 2020 election results.
Though the focus of current news is on Ginni’s texts, these particular Meadows texts are the most salient to me:
This is a fight of good versus evil.
Evil always looks like the victor until the King of Kings triumphs. Do not grow weary in well doing. The fight continues. I have staked my career on it. Well at least my time in DC on it.
A fight for power, not principles, is often framed in moral terms. But keeping conservatives in power as the ‘good’ to triumph over the ‘evil’ liberals feeds into the only possible justification for ‘Stop the Steal,’ and there is no justification for prioritizing conjecture over facts to determine democratic outcomes.
Based on Ginni’s texts disclosed in the Washington Post and the New Yorker Ginni Thomas exposé, the Supreme Court Justice’s wife more often than not comes across like a true believer who cherry picks her facts and filters all media through her political perspective. Yes, she is a MAGA hardliner. And she fights as hard, if not harder, for Trump’s America than perhaps any well connected individual in Washington, D.C. And therein lies the more crucial and long-term issue in American politics - how well-connected individuals influence political policies and decisions, regardless of political ideology. Is Ginni unique in her influence? The New Yorker article, “Is Ginni Thomas a Threat to the Supreme Court?,” certainly would have readers believe so, but upon reading the piece, were any potential crimes described or was it more unsavory and distasteful associations and actions by an ultraconservative American elite? (This assumes, based on what has been reported so far, that she did not storm the Capitol, and that she did not advocate as such to members of the White House or other relevant parties. There are insinuations, such as her possibly having emailed Jared Kushner on January 6th, but not enough information has been made public on that front.)
So with that in mind, are any of her texts surprising to anyone? Personally, this text reflects the more serious issue:
Most of us are disgusted with the VP and are in listening mode to see where to fight with our teams. Those who attacked the Capitol are not representative of our great teams of patriots for DJT!!
She is separating those who stormed the Capitol from those advocating ‘Stop the Steal” based solely on legal grounds when both are fighting against democracy. There is no material evidence the election was stolen. Joe Biden won the popular vote by more than 7 million votes and the electoral vote (granted he narrowly won the popular vote in specific states like Georgia and Wisconsin which ultimately secured Biden the electoral vote threshold needed to be elected President). The Republican party, almost entirely, excused and sometimes advocated for the Trump conservatism that has and will possibly in 2022 & 2024 secure them additional political power. Self-interest at any cost with any method imaginable at the expense of democratic principles (not norms) inevitably allowed extremism to take the spotlight.
And, as has been reported, it is entirely likely all of these texts between Ginni Thomas and Mark Meadows present no (additional) legal issues for either individual.
Judge Clarence Thomas
As Ginni’s husband and best friend, logic would dictate there was more than likely a conflict of interest. The Washington Post points out, and many media outlets also reported, Ginni Thomas clearly played a key role in Trump’s legal strategy to “Stop the Steal” and that alone should have led SC Justice Thomas to recuse himself in all related court matters.
Yet as Fix the Courts (a key source for the New Yorker expose) states on their website:
The nine justices of the Supreme Court are the only federal judges not bound by the Code of Conduct for U.S. Judges, which goes beyond the basic ethics laws enacted after Watergate and creates uniformity around thorny issues like recusals and participation in political activities.
Research compiled from Fix the Court points out that while none of the justices has committed a removal offense, all nine of them are culpable of various ethical oversights, from leaving assets off their annual financial disclosure reports to speaking at partisan fundraisers to ruling on cases despite credible conflicts of interest.
Moreover, from the New Yorker expose - “Recusals on the Supreme Court are extremely rare, in part because substitutes are not permitted, as they are for judges on lower courts.” This does not excuse a lack of recusal by Clarence Thomas but it is another layer of a known problem. If Supreme Court Justices essentially rely on an honor code despite a Code of Conduct which applies to other US judges and there are not enough justices in number and spanning the political ideological spectrum, then a more holistic and robust set of Supreme Court changes would be warranted.
Also, it does not seem likely at this moment, that Clarence Thomas will be impeached. Five House Democrats have called upon SC Justice Thomas to resign or be impeached so far. But, as Senator Sheldon Whitehouse, cosponsor of Supreme Court ethics legislation told Politico, “Well, I think in the first instance it’s up to the court to make a determination as to when it’s going to subject itself to a code of ethics, when it’s going to have some degree of oversight rather than have every judge decide for themselves and when they’re going to take recusals more seriously.” If the co-author of the legislation believes the Court will effectively discipline itself, then SC Judges’ actions will continue to fuel the culture war instead of instilling greater trust in the third branch of government.
Known recommendations to the Supreme Court
As Chief Justice John Roberts wrote in his annual year-end report, “Public trust is essential, not incidental, to our function.”
In writing about Judge Ketanji Brown Jackson’s Senate confirmation hearing sideshow, two recommendations were referenced from the December 2021 Presidential Commission report on the Supreme Court of the United States:
Term limits to address the variance in life tenures, to add predictability to when Justices are nominated and to better match the political dispositions of Judges (which exist regardless of stated neutrality) with how the nation votes over time.
Long fixed terms and post-service guarantees of financial security would better safeguard judicial independence politically and financially.
Based on everything reported so far regarding Judge Clarence Thomas not recusing himself from legal matters in which he had a likely conflict of interest, two more recommendations from the same aforementioned report:
A Code of Conduct. As Chief Justice Roberts stated “Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body” (i.e. the Supreme Court). Congress can write such a code, if the Supreme Court itself continues to not officially adopt the existing Code of Conduct regulating other US judges.
Judicial discipline. Similar to the Judicial Conduct and Disability Act to which other federal judges are subject, Supreme Court Justices need to adopt a complaint and discipline framework to ensure there be “sanctions for conduct that is prejudicial to the ‘effective and expeditious’ business of the courts.”
And if SC Justices become more diligent in recusing themselves from cases in which there may be a conflict of interest, then Congress needs to:
Increase the size of the Supreme Court. It is important to note that “Article III of the Constitution, which establishes the judiciary, requires that there be ‘one supreme Court’ but does not specify the number of Justices that shall serve on that Court.”
If however, no holistic changes are made, the above 50% approval of the Supreme Court could start to deteriorate. And more importantly, the American' public will continue to be held to account for a court that does not hold itself to account and is not adequately supported by Congress and the President through new legislation.
..to learn more about the public’s trust in the judiciary: