The Court Can't Heal Itself, Part 2.
The branch of government that depends most on trust cares least about preserving it. Now it's up to Congress.
This is not Samuel Alito. Instead it’s an image of Pompeia, the second wife of Julius Caesar and the inspiration for the line that “Caesar’s wife must be above suspicion.” And by extension, that people in positions of authority should anticipate questions about their probity. If Alito himself and other members of the U.S. Supreme Court lived by that principle, the Court might not need outside supervision. But they don’t, so it does. (Library of Congress image.)
Here is my view about “disclosure.”
—If there is anything about you that people might find relevant if they learned it later on, you should let them know ahead of time.
—By the way, I never call this “full disclosure.” Nothing’s ever complete or full. Instead I say, “For the record.”
So whenever I write about something with which I have a non-obvious connection, I take pains to make that clear up front.
For instance: If I’m doing a big story about U.S. party politics, at some point I’ll mention “for the record” that I once worked for a Democratic president. If I’m recommending a book or magazine article, I’ll make it clear if I know the author. When Deb and I write dispatches for the Our Towns project, we note who is supporting our reporting and travel.
You get the idea.1 I have an absolutist “no surprises” approach when it comes to disclosing anything the audience might possibly find significant later on.
And remember that this is for my own, non-consequential writing—which at most might affect how someone thinks about an issue, but which has zero legal or direct economic impact on anyone else. Perhaps I make these disclosures out of vanity: I’m afraid that if I hide some conflict and a reader later finds out, I’d look worse in the long run. But it’s a rule that I and many other writers observe.
How different this is from the Supreme Court.
The most powerful, least accountable figures in public life.
Here’s a summary of the paragraphs that follow:
The nine lifetime-appointees on the US Supreme Court have more individual power than anyone else in US public life.
Yet those nine members are under fewer formal controls on their ethics and possible conflicts than any (and I stress any) other federal official or employees, including those with purely clerical or administrative duties.
The legitimacy of the Court therefore depends on the rest of us believing that those we trust with power are trustworthy.
The current Court has shown that it is not.
Therefore it is time for outside intervention, and supervision.
Now, more details.
Checks and balances as a bedrock of modern life.
Every other important role in modern life is subject to outside checks and scrutiny. Doctors have review panels. Corporate officials must answer to boards. Elected officials must answer to the voters. These safeguards are imperfect, but they’re something.
They apply within most of the judiciary as well. Every member of the federal judiciary except those nine on the court is subject to ethics laws and disclosure requirements. But until now, these nine have asserted that they—uniquely among humanity—should answer to no authority beyond what they deem right themselves.
Some people might have believed this before. But human experience suggests its pitfalls. For instance, many people once believed in self-regulation of a beyond-reproach clergy.
In the Thomas-Alito era, no sane person can believe that the Supreme Court is an exception to the lessons of all other human experience. Individual members of the Court plainly won’t live by the “Caesar’s wife” standard. And the Court’s only internal “authority,” in the form of the Chief Justice, plainly lacks the power to impose any standards.
The Court won’t impose any limits, standards, or self-criticism on itself. So someone else has to.
What is odd about the Court.
The nine members of the Supreme Court wield more individual power, less accountably, for a longer period, than anyone else in our public life.
Anyone.
A serving president of course out-powers any other individual. But presidents are subject to re-election or impeachment. They are dissected in the press every day. Even for the most dominant, their time in command is limited.
The Supreme Court, by contrast? If even one of the five lifetime appointees who decided to stop the Florida recount in 2000, and award the presidential election to George W. Bush, had voted differently, tens of millions of lives would have changed.
The disastrous Iraq War would probably never have happened.2 The Supreme Court itself would presumably have had a lastingly different makeup. George W. Bush ultimately appointed John Roberts and Samuel Alito. Without the Bush v. Gore ruling, who knows? The last Democratic president to appoint a Chief Justice was Harry Truman, in 1946. The last time the Court had a Democratic-appointed majority was at the end of Lyndon Johnson’s time in office, before 2/3rds of today’s Americans were born.3 Since then, Republican presidents have appointed 13 justices; Democrats, five. This chanciness—of longevity, of circumstance—is something only a very lucky country could endure.
The Voting Rights Act? Without Bush v. Gore, it would still be in effect. Roe v. Wade? Similarly. For Citizens United, John Roberts might have been a lonely dissent rather than writing the majority opinion to undo the Voting Rights Act—although, without Bush v. Gore, he might never have been on the court at all.
Sandra Day O’Connor, Anthony Kennedy—if either of them, the supposed “swing” votes on the Court, had gone the other way in 2000, Al Gore would presumably have been sworn in. Then George W. Bush might have fulfilled his dream to become commissioner of Major League baseball, and history would have followed a different gyre.
Either one of those people, O’Connor or Kennedy, had that power in his or her hands.4
The other 330 million of us in the American public will never come close to that power. For the three million people in the federal work force (except those nine people), the same. Yet virtually all of us live under tighter rules of ethics and behavior than did those two—and the nine people now empowered on the Court.