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The Supreme Court is not exceptional, but it is the exception

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Special to the Daily Californian

JUNE 16, 2023

A crisis of confidence toward the Supreme Court is brewing among the American people and has become yet another partisan clash within Congress. Apparently, asking the highest court of the land to be subject to a clear and enforceable code of ethics seems far too bizarre and out of line. Has it been forgotten that rulings made by the Supreme Court have a lasting impact? Or the fact that the court is supposed to be the leading example of serving justice in America? 

A significant number of people do not realize how lax the standards of conduct and ethics are for Supreme Court justices. The executive branch and the legislative branch are both required to abide by strict standards to prevent them from voting or deciding on a matter where they have a conflict of interest. 

It is quite frightening to think that there exist no such ethics code to prevent skewed judgment or any other form of misconduct from the justices. I can now see how the constitutional separation of powers could allow for exceptions of misconduct.

A Senate hearing took place May 2 to discuss ethics reform within the Supreme Court. This hearing was called following the revelation of unreported lavish travel and real estate deals between Justice Clarence Thomas and his friend, Republican donor and businessman Harlan Crow. Thomas had received two decades worth of undisclosed gifts.  This leads to the assumption that he withheld this information as it was a conflict of interest. 

But how exactly was it a conflict of interest? Well, Thomas was one the justices in the majority vote (6-3) who decided to end a federal administrative moratorium on evictions in August 2021, which happened to end the same federal tenant protections that his billionaire benefactor’s company, Crow Holdings, said threatened its real estate profit margins. Thomas did not recuse himself from this 2021 case, despite its potential impact on Crow Holdings or his relationship with the billionaire.

More recently, The Lever reviewed Crow Holdings’ corporate documents and discovered the company had flagged rent control as an issue that threatened its business.  The Supreme Court should soon expect to review a petition, filed by New York landlords, asking to overturn the city’s rent stabilization laws.  

This means a rent control case could come before Thomas. This means he could, once again, rule on a matter related to his benefactor’s business. If he didn’t recuse himself from the case in 2021, what would prompt him to do so now? This notion is extremely alarming considering that such a ruling could endanger rent control laws nationwide. 

In the Senate hearing, advocates for court transparency, including numerous leading Democrats, expressed their growing frustration towards the justices for refusing to adopt stronger rules to prevent potential conflicts of interest. This frustration is completely valid — however, it is not shared by everyone. 

Sen. Lindsey Graham, R-South Carolina, and other leading Republican lawmakers, opposed legislation about ethical rules on the justices claiming that this was only being done as an effort to undermine the legitimacy of the Court, which is currently conservative led. This response from Republicans implied that the Democrats are only coming after the court because they disagree with the rulings and want to undermine the authority of justices who issue those rulings. 

While it is true that Democrats oppose some of the court’s rulings, it is also true that there is a trend of ethical discrepancies among the justices. This only further gives critics a reason to question the court’s rulings.

It seems to me that Republicans that oppose this reform cannot deny the allegations the court is facing, so instead they try to defend the court by framing it as an almighty body that cannot be touched. 

Even lower court judges have expressed how they expect the court to be “more robust in asserting itself in this area of ethics and transparency” — how alarming is it for lower courts to have to ask the Supreme Court to be a better role model? If federal law allows filing and investigating misconduct complaints against lower court judges, I don’t see why the same shouldn’t apply to the nation’s highest justices. 

These concerns about the court as an institution should make the justices eager to rid the public of its skepticism. Instead, they dismissed themselves from acknowledging the problem and didn’t even bother to attend the hearing, which tells us what we already know — the Supreme Court is unable and unwilling to keep itself under check. Since the court will not act, Congress must. 

At the Senate hearing, constitutional experts Laurence Tribe and J. Michael Luttig agreed in written testimony that Congress has the ability to impose a code of conduct for the justices. Sen. Alex Padilla, D-California, who is a member of the Senate Judiciary Committee, cosponsored legislation to ensure accountability, transparency, and enforceable ethical standards. 

The Supreme Court Ethics, Recusal, and Transparency Act was introduced by Sens. Sheldon Whitehouse, D-Rhode Island, and Richard Blumenthal, D-Connecticut. Its purpose is to create a code of conduct and develop a process for enforcement, improve hospitality and financial disclosures, and strengthen recusal requirements. It is crucial that we urge the Senate and the House to pass this bill if we want to feel like we can trust and confide in the highest court of the nation. 

The justices have exhausted their entitlement for far too long and if nothing is done, we will continue hearing about reported misconduct for the rest of their lives — after all, they literally serve for life. 

Michelle Munera graduated from UC Berkeley this past May with a bachelor's degree in political economy, with a concentration in social inequality in the United States, and a minor in public policy. Contact the opinion desk at [email protected] or follow us on Twitter.

JUNE 16, 2023