When the Supreme Court last year enacted a new ethics policy with no enforcement mechanism, this editorial page and many others called it out as a toothless charade intended to silence critics of the court's ever-escalating examples of clear conflicts of interest.
Recent revelations that Justice Samuel Alito's properties have flown flags symbolizing solidarity with the mob that attacked the U.S. Capitol on Jan. 6, 2021, drives home the urgency of putting some teeth into those standards.
Congress could potentially force the issue by pressing ahead with long-simmering efforts to impose mandatory, enforceable ethics rules on the high court. It's a solution that many legal scholars and even some justices say would be constitutionally valid. But that's by no means a universal view, and such a move could well spawn a constitutional crisis.
A better solution, by far, would be for Chief Justice John Roberts to lead the court itself in creating a transparent and real enforcement mechanism for the ethics standards it announced last year.
It would be a Nixon-to-China moment for Roberts, who has so far shown little indication that he understands the dire crisis of confidence that faces the court with the American public. The judgment of history, if nothing else, should motivate him to come around on that issue and salvage this court's battered credibility.
The Supreme Court consists of the only nine jurists in America who aren't legally mandated to recuse themselves from cases in which they have demonstrable conflicts of interest. Roberts and others have long insisted that such a mandate isn't necessary because the justices voluntarily hold themselves to the same ethics standards that other judges must adhere to.
That always-iffy argument has, in the past few years, become a disturbing punchline, given the various ethics revelations that have emerged involving various justices.
The most glaring examples involve Justice Clarence Thomas, who has refused to recuse himself from cases involving the plot by Donald Trump and his supporters to overturn the 2020 election, despite the active involvement in that plot by his spouse, Virginia Thomas.
Among other actions, Mrs. Thomas sent emails to state officials in Arizona and Wisconsin pressing them to "fight back against fraud" by putting forth slates of fake electors to throw the results to Donald Trump.
How is the public supposed to believe that level of delusion in the Thomas household was unrelated to, for example, Justice Thomas' sole dissenting vote in the court's 2022 decision forcing Trump to turn over documents to the House committee investigating Jan. 6?
Less ideological (though grubbier) examples of conflict of interest abound. Thomas has for decades accepted lavish vacations, a luxury motor home and other gifts from billionaires. Justice Alito took a trip to an Alaskan fishing lodge - complete with a private jet ride there - on the dime of a hedge fund manager with business impacted by the court.
It's not just the court's right-wing majority engaging in questionable conflicts, either. Liberal Justice Sonia Sotomayor's tax-funded staff has sold her books to universities, something other government employees would be barred from doing.
And now comes the revelation that an upside-down American flag flew over Justice Alito's Virginia home shortly after Jan. 6, when that traditional symbol of distress was being used by the MAGA movement to push its false narrative of a stolen 2020 election.
It subsequently came out that a Revolutionary-era "Appeal to Heaven" flag - another symbol commandeered by MAGA's insurrectionist movement - was seen flying at Alito's Long Island beach house last year.
Alito has attributed the first episode to his wife's conflict with neighbors, and apologists have noted both flags had symbolic significance long before Jan. 6.
Such obfuscation misses the point: This Supreme Court's credibility is already hanging by a proverbial thread because of the strained logic and from-whole-cloth legal theories its right-wing majority has used to gird Americans' rights regarding abortion and other explosive issues. As such, it's more important than ever that even the appearance of conflict of interest be avoided at all costs.
Predictably enough, Alito last year told an interviewer that Congress cannot constitutionally force an ethics code on the court, in his view. Talk about a conflict of interest.
We're with Justice Elana Kagan, who has noted that "our whole system is one of checks and balances," and that "it just can't be that the court is the only institution that somehow is not subject to any checks and balances from anybody else. We're not imperial."
Still, a preferable solution would be for the court itself to impose an enforceable, binding ethics code that would ensure that justices recuse themselves from cases in which they have clear conflicts of interest (or even the strong appearance of it), regarding not just money, but ideology.
By that standard, Alito and Thomas belong nowhere near the cases headed to the court involving Jan. 6 and the various legal questions that have arisen from it. That is crystal clear to a great many Americans. Roberts' court refuses to see it at peril of its own continued decline in legitimacy.
REPRINTED FROM THE ST. LOUIS POST-DISPATCH
Photo credit: Haley Hamilton at Unsplash
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