As Americans reel from the destabilizing impact of a U.S. Supreme Court intent on tearing down decades of precedent in a matter of years, the question is what happens when a court with lifetime appointments goes rogue at the same time as lapses in ethics are exposed?
Confidence in a once-beloved institution plummets.
But even as the public clamors to strip power from those who have breached public trust, we still believe in reform of the court not tearing it down. It will not serve America well to impeach justices. Nor will it work to pack the court with more justices who can water down the influence of the religious radicals and those with dubious ties to Republican donors.
Our founding fathers established the Supreme Court with lifetime appointments “during good behavior” so it would be a stabilizing force in America, checking the whims of elected officials and public sentiment with a body immune to elections and even insulated from the consequences of their decisions.
Even when the public is clamoring for breaches of our constitutional rights in the face of war, terrorism, or total economic collapse, the court would stand firm in protecting liberty for future generations.
The grand bargain was always that justices would also have to live insulated from politics. They are granted the final word in public policy for their entire lives and as such, we expect them not to give or gain from the influence, clout, and wealth of the political elite.
From municipal court to the federal court of appeals, a judge’s second most important job is to jealously guard his or her autonomy. Adopting even the bare minimum ethics rules that federal judges must abide by would be a start, but the justices at the Supreme Court have failed to clear even that low bar.
Many justices have accepted book deals and highly lucrative speaking engagements, others have taken undisclosed luxury yacht trips or guided fishing tours traveling on a private plane with conservative billionaires picking up the tab or allowed individuals to pay for private school tuition for relatives, or sold property to individuals whose business dealings may come before the court. It all looks and feels bad.
Their first job is to guard Americans from infringements on their constitutional rights. Yet this court has zealously stripped pregnant women of the right to privacy all other Americans enjoy, rejected the court’s long-held ruling that race-conscious admissions pass strict scrutiny in the name of diversity in our higher education institutions and opened a door for discrimination by businesses that use “speech or expression” in their work.
So what do we do when members of the court suffer appearances of impropriety at the same time they tear down the work of their predecessors?
For now, the answer is reform. Justices must win back the confidence of the American people. It is imperative that we are able to trust that the judicial system is fair, unbiased, and not swayed by money or outside influence.
Complete transparency is required. We need phone logs and travel records. We need detailed financial disclosures stretching back decades for both the justices and their spouses. And then the court must force justices with clear conflicts exposed in these records to recuse themselves from cases.
But transparency is not enough. Rules and regulations going forward must restrict the type of gifts and payments justices can receive.
And we can eliminate the need and the ability for a justice to pick up a “side hustle.” The salary for justices should be increased from $255,000 to something more in line with what top attorneys in America are paid. Let’s increase their pay and tighten down the rules for other employment opportunities and gifts.
Chief Justice John Roberts has been disappointing these last few years, and if during the off-season for the court — stretching from now until October — he cannot compel the justices to adopt self-regulating rules and transparency policies, then Congress must act.
We expect the courts to be independent, not unaccountable.