When the U.S. Supreme Court justices in November announced new ethics rules that had no teeth, they said it would “dispel” the “misunderstanding” the justices “regard themselves as unrestricted by any ethics rules.”
Well, that didn’t work. It’s time for Congress to step in as new revelations about questionable ethics keep popping up.
Since the court proclaimed its feeble ethics rules, we have learned, from New York Times reporting, about an upside-down flag and an “An Appeal to Heaven” banner — both recently used to signal support for overturning the 2020 election — flew outside the home and vacation home of Justice Samuel A. Alito Jr.
Both flags were toted by insurrectionists on Jan. 6, 2021, during the assault on the U.S. Capitol. Yet Alito, who blamed his wife for the upside-down flag, has declined to recuse himself from cases arising from the insurrection. And his statement to Congress that his wife put up the flag after an argument with a former neighbor was disputed Wednesday by the former neighbor, Emily Baden, who said in a CNN interview the flag had been flying before the argument.
Similarly, Justice Clarence Thomas has declined to recuse himself from cases involving those who in past years repeatedly bestowed him with expensive gifts, including luxury trips. In an annual disclosure report for 2023 made public on Friday, Thomas belatedly amended a previous report to add additional luxury travel he had accepted from conservative billionaire Harlan Crowe. Fix the Courts, a watchdog group, said on Thursday Thomas has accepted more than $4 million in gifts while on the court from 2004 to 2024.
Thomas also has declined to recuse himself from Jan. 6-related cases, even though his wife, Virginia “Ginni” Thomas, helped lead the campaign to overturn 2020 election.
Are we really to believe none of that could nudge Alito and Thomas in rulings on related court cases?
If they truly want to clear up any “misunderstandings,” Alito and Chief Justice John G. Roberts Jr. should meet with lawmakers about the flag controversy and court ethics in general. Like most Americans, we want answers on this. It’s not about raking people over the coals. It’s about taking steps to restore confidence in the court, which means every justice should scrupulously avoid even the appearance of impropriety.
Americans should never feel any justice could stand in the middle of Fifth Avenue, commit a serious ethics breach and expect everyone to ignore it. But Alito has already violated some of the rules in the court’s new ethics code, such as allowing the public display of symbols tied to a political movement. His letter of explanation to Congress contains unexplained discrepancies, including a timeline with apparent glitches. It would be immensely scandalous should Alito turn out to have capriciously misled or even lied to Congress and the public.
Congress needs to enact legislation that holds Supreme Court justices to high ethical standards. The Supreme Court Ethics and Investigations Act, introduced June 4 in the House, would create an Office of Investigative Counsel with the power to issue subpoenas to probe ethics complaints against justices. In the Senate, the Supreme Court Ethics, Recusal, and Transparency Act, introduced last year, would require justices to accept a binding code of conduct, among other provisions. But neither of those bills are likely to make it to President Joe Biden’s desk against Republican opposition.
That’s why a hearing is needed before the Senate Judiciary Committee, led by Sen. Dick Durbin, D-Ill., to seek additional evidence that could shed light on the veracity of Alito’s story.
To paraphrase an old Chicago adage, Alito sounds like he is saying the Supreme Court ain’t ready for reform. Last year, he said Congress doesn’t have the power to regulate the court, even though Congress already has enacted rules that govern the justices. He has refused to acknowledge any concern people may have about the fairness of his votes that will be announced on Jan. 6-related cases. Moreover, he essentially invites those who have harassed or made violent threats against lower court judges who have ruled on Jan. 6 cases to believe those making the threats have a friend on the nation’s highest court. That undermines the whole notion of an independent judiciary.
At a time when the nation is polarized, we need a court that is an honest arbiter of disputes. Without an enforceable ethics code, we can’t hope to get one.
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