Marilyn Monroe defined the art of receiving gifts gratefully back in the 50s with “Diamonds Are A Girls’ Best Friend.” Nobody expected that the lyrics would apply one day to the Supreme Court of the United States. It’s gifts are more about luxury yachts and mansions than about the sparkly stuff. And they are not about girls, as far as we know.
A steady stream of news stories recently revealed ethically questionable behavior on the part of some U.S. Supreme Court Justices. The stories focused on lavish trips and gifts accepted by Judges Clarence Thomas and Samuel Alito, but not reported, as was mandatory. The frequency and extravagance of these “gifts” brought them to the attention of the press. As Newsweek noted, “Apparently, this behavior has been going on for years but is only coming to light now. The ‘gifts’ are particularly distressing because they smack of corruption, calling into question the impartiality that is essential to public confidence in any court’s rulings.”
This attention, and the public outcry, led to pressure on the Court to rectify its ways of behaving. “The absence of a code…has led in recent years to the misunderstanding that the justices of this court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules,” the New York Times declared. The justices themselves wrote, “To dispel this misunderstanding, we are issuing this code, which largely represents a codification of principles that we have long regarded as governing our conduct.”
On November 11, the Supreme Court adopted its first-ever ethics code, a direct response to the allegations of scandal and misconduct . In an unsigned statement from the court, all the justices said that this written code reflects long-held informal standards. “The hope is that this code will reverse the “sharp decline in the country’s confidence in the Court.”
President Biden signed the law, but while the new code addresses some of the issues, many complain that it does not go far enough. Jamelle Bouie of the New York Times complained, “In a real sense…this new ethics code is little more than a P.R. move. And for those of us who think the Supreme Court is too powerful, the code reinforces the idea that the only legitimate steward of the court’s behavior is the court itself.”
The Brennan Center for Justice concurred. “The new code doesn’t change the basic fact that each justice polices themself when it comes to complying with the rules. No outside person or group of people, either within the judiciary or outside of it, has the ability to step in and overrule a justice who decides they should or should not take a certain action based on the rules. Each justice has the absolute final say. That is the system that got us to where we are today.”
There is no argument that the code is silent about a major source of dishonesty that has received scant attention but has far-reaching effects. Candidates for the high court are subjected to intense scrutiny by the Senate. Thanks to nationwide TV coverage, we all witnessed each candidate swear that oath. Shockingly, evidence that ‘lies’ candidates for the Supreme Court tell during their confirmation hearings are barely acknowledged, never punished, and ignored by the new Ethics code. This is more worrisome than luxurious gifts.
“In 2018, Senator Susan Collins went out of her way for Justice Brett Kavanaugh,” noted Vanity Fair. “On the Senate floor, she delivered a 45-minute defense of the Supreme Court nominee…Of course, taking it upon herself to argue for Kavanaugh’s innocence wasn’t the only cringeworthy part of Collins’s remarks. She devoted a section of her speech to noting her faith in Kavanaugh not overturning Roe v. Wade. ‘Protecting this right is important to me,’” Collins said.
Speaking about Roe, Kavanagh said, “It is an important precedent of the Supreme Court that has been reaffirmed many times…It is not as if it is just a run of the mill case that was decided and never been reconsidered, but Casey [another important case] specifically reconsidered it, applied the stare decisis factors, and decided to reaffirm it. That makes Casey a precedent on precedent.”
After Kavanagh voted with the majority to overturn Roe, “reporters flocked to Collins’ office …for her reaction, given she cast a vote pivotal to Kavanaugh’s ascension to the court.”
To CNN, Collins said that Kavanaugh had given her assurances during his confirmation process “That the landmark opinion was safe.”
Others agreed: Democratic Sen. Kirsten Gillibrand told CNN that conservative justices “misled the Senate, with the intention of getting their confirmation vote, with the intention of overruling Roe.” She added that “they would purposefully create the impression that they would not overrule settled precedent, and that it was not only deserving of due weight and the importance of precedent, but because it had been reaffirmed, that it deserves more weight.”
House Speaker Nancy Pelosi, who called overturning Roe an “insult” and a “slap in the face to women,” raised Kavanaugh’s and Neil Gorsuch’s statements about Roe during their confirmation hearings in searing remarks reported by NBC news. “How about those justices coming before the senators and saying that they respected stare decisis, the precedent of the court. That they respected the right of privacy in the Constitution of the United States. Did you hear that? Were they not telling the truth then?”
“It is a good thing that the court felt compelled to respond to the public. It would be better if Congress would exercise its constitutional authority to shape — and discipline — the institution,” wrote Jamelle Bouie in the New York Times.
Indeed, the court does not always support public opinion. In the middle of the Depression, President Franklin Roosevelt grew very angry with the court for overturning some of his popular New Deal programs .He tried a court packing plan, to get more members on the court who favored his agenda. The plan failed miserably.
The Trump Court voted down Roe v. Wade at a time when 62 percent of Americans disapproved its action. Public support for legal abortion remains largely unchanged with 62% saying it should be legal in all or most cases, notes the Pew Research Center.
The critical question is which way the court will move now. Will it, for example, allow states to forbid its citizens from traveling across state lines to get abortions where the procedure is still legal? Will it allow women who suffer miscarriages to be treated as criminals? Will it permit states to prevent abortions for young girls who have been raped or abused by relatives? And will it allow prosecutions of women whose lives are endangered by pregnancies that have gone terribly wrong and seek abortions?
A concurring opinion from Justice Thomas urged the court to revisit cases that have already been decided about contraception (and same-sex marriage.) Women could lose IUDs, pills, patches, or vaginal rings, and any form of emergency contraception.
American women are at an unprecedented crossroads, and for the first time in fifty years, there are no guarantees for what the future holds for our reproductive rights.
About the authors:
Dr. Rosalind C. Barnett is a senior scholar at Wellesley College and has directed research projects for the National Science Foundation, the Alfred P. Sloan Foundation, the National Institute of Mental Health, the National Science Foundation, and others.
Caryl Rivers is a professor of Journalism at Boston University, and received the Award for Lifetime Achievement from the Society of Professional Journalists and a Gannett Freedom Forum award for writing about gender.
