Losing Faith in the Supreme Court

Over the last few weeks, the Supreme Court has released several decisions that put people in need at risk and allow those who obstructed democracy to escape accountability. During this past term, we have witnessed decisions which:

• Allows states to arrest or fine homeless individuals for using survival items like blankets or pillows in public spaces when no alternative shelter is available.
• Transfers the power to interpret the law from federal agencies to judges, putting at risk thousands of federal regulations that address issues such as climate change, student loans, affordable housing, and accessible healthcare.
• Sidesteps critical questions about abortion access and maintains a status quo in which 24 states have banned or restricted abortion across the country.
• Ignores the language of a federal obstruction-of-justice statute to hold that the January 6 rioters did not “obstruct or impede” the congressional proceeding to certify the election, thus calling into question the cases of potentially hundreds of Jan. 6 defendants who faced the same charge.
• Affirms that President Trump is immune from prosecution for “official acts” taken during his presidency, creating the possibility for a sitting president to lawfully commit heinous crimes in their official capacity while in office. With this ruling, the prospects for a trial before the election seem increasingly remote. And if Trump prevails at the polls, he could order the Justice Department to drop the charges.

As people of faith in pursuit of a just world for all, these court decisions are disheartening and alarming. The Supreme Court is meant to be an institution of justice, led by the principles of fairness and equality. Instead, it is expanding its influence over federal agencies, ruling against the provision of basic needs for the poor, and deferring accountability for those who sought to overturn the 2020 presidential election.

To understand where we are now, we must first look back to 2016 when President Obama nominated Judge Merrick Garland for the U.S. Supreme Court.  In an unprecedented decision, the U.S. Senate under the leadership of Mitch McConnell refused to move forward with any confirmation proceedings. No hearings were held, no deliberations began, because McConnell contended the nomination was “too close” to a presidential election (which was 8 months away), and the incoming president should be able to nominate their choice for justice. This had never happened in the history of the Supreme Court. When Judge Amy Coney Barret was nominated by President Trump just two months before another presidential election in 2020, the Senate, still under the leadership of Mitch McConnell, violated the very principle they had set four years earlier, instead fast-tracking her confirmation as Justice.

Since then, the Supreme Court bench has become home to controversial candidates like Justice Brett Kavanaugh, who was accused of sexual assault and harassment by two women during his confirmation hearings. Justice Amy Coney Barrett was confirmed just 7 days before the presidential election in 2020, less than a month after it was found that she had signed her name to an advertisement that ran in South Bend, Indiana that called for the end of the legal right to abortion and fertility care.  

As these justices have joined the bench, growing controversies surrounding the Court have called into question the ethical conduct of the justices themselves. While every justice is legally required to disclose all “gifts” they receive and to recuse themselves from certain cases to avoid bias, some fail to do so. Reports have shown that multiple justices chose not to disclose significant financial gifts they received from wealthy and powerful individuals and did not recuse themselves when their funders brought cases to the Court. For example, Justice Clarence Thomas has accepted all-expenses-paid luxury trips from Harlan Crow, a Republican campaign donor, every year for the last 20 years. Crow also gave half a million dollars to a Tea Party group founded by Ginni Thomas, Justice Thomas’s wife, which paid her a $120,000 salary. These trips and gifts never appear on Thomas’s financial disclosure documents, and he failed to recuse himself in key election cases where the Republican campaign donor had significant interest. Justice Samuel Alito took a luxury, all-expenses paid trip to Alaska in 2008 on the dime of Paul Singer, a hedge fund billionaire who has repeatedly asked the Supreme Court to rule in his favor in high-stakes business disputes. Alito failed to report this all-expenses-paid trip and failed to recuse himself in the over 10 cases involving Paul Singer’s hedge fund. Justice Neil Gorsuch sold land to the CEO of Greenberg Traurig, a law firm that files in the Supreme Court, for $500,000 just 9 days after he was confirmed. While he disclosed the sale, Gorsuch failed to list the sale’s recipient. Gorsuch did not recuse himself from any of the 22 cases Greenberg Traurig brought to the Court since.

Additionally, both Justices Alito and Thomas are linked to the attempt to overthrow the 2020 election, yet neither has recused themselves from the Supreme Court cases surrounding the January 6 attack. During the weeks between the 2020 presidential election and the January 6 attack, Clarence Thomas’s wife, Ginni Thomas, wrote “Biden and the Left is attempting the greatest Heist of our History,” in a text message to Mark Meadows, President Trump’s chief of staff. After the 2020 presidential election, as some Trump supporters falsely claimed that President Biden had stolen the office, many of them displayed an upside-down American flag outside their homes. One of the homes flying an inverted flag during that time was the residence of Justice Alito, according to photographs and interviews with neighbors. The upside-down flag was aloft on Jan. 17, 2021, images showed. President Trump’s supporters, including some brandishing the same symbol, had rioted at the Capitol a little over a week before.

Federal judges sit in a unique position of public trust. They have lifetime tenure, a privilege intended to insulate them from the potential corruption of politics. Earlier this term, the Supreme Court announced an ethics code — a first for the court. Under those guidelines, justices are encouraged to avoid even the appearance of bias. However, the code has no clear enforcement mechanism and there is no process, at least that has been disclosed to the public, for investigating a complaint of a violation or any disciplinary measures that may be imposed if a violation is found. And while the Supreme Court has reportedly cautioned its employees against anything that might signal a political display, there is no clear avenue for how the Court should respond to such a violation. As it stands, the Supreme Court is left almost entirely to police itself, but there is little evidence this internal policing is happening. 

Our faith demands that we do everything in our power to shore up democracy in this nation. Part of that is ensuring each branch of government operates as it should, and neither oversteps nor abdicates its power to another branch. Unfortunately, it seems the Supreme Court has sought to take power away from federal agencies, sheltered insurrectionists, and criminalized the poor using a majority that is under the influence of the wealthy and powerful. That is why we must support term limits for Supreme Court justices, which would give each president the opportunity to appoint the same number of Supreme Court justices each term, reducing partisan gamesmanship around each confirmation and making the Court more democratically representative. And we must urge Congress to institute a binding code of ethics so that Americans can trust the justices are ruling based on the law, not politics and personal interest.

It can feel as though we have no way to access, reform, or change the highest court in the land. But we must remember that our Constitution gives Congress the power to make sure that the Supreme Court actually serves the people and not themselves. And we, the people, elect Congress. We hold them accountable when they abdicate responsibility. Please, join me, and fight for a more just tomorrow, today.