Supreme Court justices adamantly declare they are above the grubby machinations of partisan politics. But that narrative is contradicted by events like last week’s speech by Justice Neil Gorsuch to a closed-door gathering of the conservative Federalist Society that also included such Republican luminaries as former Vice President Mike Pence and Florida Gov. Ron DeSantis. Justice Clarence Thomas, meanwhile, refuses to recuse himself from cases in which his conservative-activist wife is actively engaged.
Lofty declarations aside, some justices aren’t even going through the motions anymore of staying above the partisan fray. That’s not good for a nation that increasingly views the high court as just another combatant in the culture wars. Calls for a formalized code of conduct could help.
Claims to nonpartisanship are difficult to believe when the conservative block repeatedly renders decisions that appear to be less about legal conclusions than political ones. The latest example was this week’s 5-4 decision allowing Alabama to keep a congressional map that creates just one district (of seven total) favorable to a Black candidate, even though Black citizens make up more than a quarter of the state’s population. The map is clearly designed to undermine not only Black representation, but Democratic power.
The court’s defenders maintain that justices’ written opinions alone aren’t evidence of partisanship if they can credibly say they arrived at those opinions based on evenhanded legal analysis of the facts. But that defense can’t explain situations like Gorsuch’s speech on Friday. He spoke to a plainly partisan Republican organization, sharing the stage with elected Republicans, at an event from which the media was barred.
It was reminiscent of Justice Amy Coney Barrett’s speech last September waxing on about the court’s political independence — a claim she made, straight-faced, as a guest of Senate Minority Leader Mitch McConnell, at an academic center that bears his name, less than a year after McConnell’s controversial rush-job to seat her before a Democratic president could take office.
Thomas’ situation is especially problematic. His wife, Ginni Thomas, was among conservative activists who signed a letter blasting the House committee investigating the Jan. 6, 2021, attack on the Capitol. A month later, Thomas was the sole justice to vote in support of ex-President Donald Trump’s effort to keep his records out of the hands of the committee. Recently revealed emails also showed Ginni Thomas telling others that her husband “has been in contact” with DeSantis “on various things of late.” That would be the same DeSantis whose state was among those that recently got the Supreme Court’s conservative majority (including Thomas) to partially block President Joe Biden’s vaccine mandates.
A group of legal scholars last week implored Chief Justice John Roberts to adopt of code of conduct for the justices. That would seem to be undebatably needed if only to restore flagging public trust in the court.