A Progressive Perspective: Reforming the Supreme Court
Nov 18, 2024
I find a number of recent Supreme Court decisions extremely disconcerting, namely, the Snyder vs. United States ruling regarding political bribery, the Garland v. Cargill bump stock ruling, and the Court’s landmark anti-environmental decision in Loper-Bright Enterprises v. Raimondo, which overturned the landmark Chevron USA v. National Resources Defense Council, Inc. case. The latter two decisions are egregious examples of the ultra-conservative majority reducing Congress’s role in protecting our people.
I am also extremely troubled by the Court’s unwillingness to enact an enforceable ethics code. I, and the majority of the American people, are becoming more and more distrustful of the court. Its current approval rating is hovering around thirty-five percent. Repeated revelations that members of the court have accepted gifts from persons with possible business before the court have only added to the mistrust.
The most jarring revelations have concerned Justice Clarence Thomas. Over a twenty year period he received luxury vacations and real estate deals valued at $133,363 from a major GOP donor. The trips and real estate exchanges, from Harlan Crow, a Texas real estate developer, were not initially reported on Thomas’s annual financial disclosure form.
It has also come out that Justice Samuel Alito accepted a luxury vacation from a GOP donor. Justice Sonia Sotomayor, aided by her staff, has promoted her books through college visits over the past decade. Former Justice Stephen Breyers took more than 200 subsidized trips from 2014 to 2018, some of which were partially disclosed, and former Justice Ruth Bader Ginsburg got a private tour of Israel in 2018 paid for by Israeli billionaire, Morris Kahn, who had business before the court.
“The problem with these kinds of favors and gifts – regardless of whether they are disclosed – is that they badly damage the courts reputation as the ultimate arbiter of the law,” wrote The New York Times Editorial Board in an opinion column on April 16, 2023 entitled “The Highest Court Has the Government’s Lowest Ethical Standards.”
While the court at long last has finally agreed to its first code of conduct, it is totally without teeth and it lacks any sort of enforcement or penalty provision. It is simply a statement as to how justices should act. It is not a requirement that they “must” act in a certain manner. At the very least, members of the court should be held to the same standards of disclosure as members of Congress. In fact, they should be held to the highest ethical standards.
What the heck is wrong with the Supreme Court? Justices are currently paid a base salary of $268,300, with the Chief Justice earning $280,500. And there are no limits on how much a justice can earn from book publications.
It is not at all rare for Justices to add six figures to their salaries through book deals. In 2021, Amy Coney Barrett reported that she received $425,000 in book royalties and she sold the rights to a book about how judges must remain neutral for a $2 million advance. In that same year, Neil Gorsuch earned $250,000 from HarperCollins, and $325,000 in 2019 and $100,000 in 2020 from Penguin Random House. The Washington Post reported that Sonia Sotomayor earned more than $3.5 million in book payments since 2010.
Justices are also allowed to earn up to $30,000 for outside teaching. Several Justices avail themselves of this additional opportunity to supplement their income. In addition, Supreme Court Justices who retire at age 70 or later after serving at least 10 years on the Court receive a lifetime pension equal to his or her highest salary while on the Court. Justices who retire prior to age 70 or before serving 10 years on the Court receive a prorated amount of that pension based on a formula. They certainly don’t need to accept gifts that impute the reputation of the Court.
President Biden recently proposed three measures to fix the court. The first, though a constitutional amendment, would overturn the court’s anti-democratic decision in Trump v. United States, which provided the President with broad immunity from criminal prosecution for his actions in office. An amendment would first require a two-third majority in each house of Congress, and then ratification by three-quarters of the states. Both of these are not possible given the divided nature of our politics nowadays.
The second proposal would provide for staggered term limits, with each Justice serving 18 years instead of the current lifetime appointment. While I think this a pretty good idea, opinions are divided as to whether this reform would also require a constitutional amendment to implement. Not happening.
The third Biden reform proposal makes infinite sense and would be doable under normal circumstances – an enforceable code of ethics for the U.S. Supreme Court, which Congress would pass.
At the present time, since the current ethics code is voluntary, there is no action that can be taken against a sitting judge for anything other than an impeachable offense. Amy Davidson Sorkin wrote in a column in The New Yorker, “An effective code of ethics might, for example, allow the Chief Justice to mandate the recusal of a Justice, owing to a conflict of interest (if, say, a spouse did work for and advocacy group) or strengthen the rules on gifts (an issue for Clarence Thomas, among others). It might, in short, make the Court seem a little less shady and a bit more legitimate. But it wouldn’t change its structure, or necessarily, alter its ideological dynamics.”
The Republicans have made it clear that the establishment of an ethics “code of conduct” for the Supreme Court is “dead on arrival.” Those were the words of MAGA House Speaker Mike Johnson. Kamala Harris indicated that she was on board with President Biden’s proposal. Thus, it would appear that with the election of Donald Trump, do not expect to see ethics reform of the Supreme Court.
Irwin Stoolmacher is president of the Stoolmacher Consulting Group, a fundraising and strategic planning firm that works with nonprofit agencies that serve the truly needy among us.