by John G. Malcolm
In recent years, the Supreme Court has been the target of a relentless and strategic campaign aimed at undermining its credibility and impartiality.
Left-wing publications such as ProPublica, Slate, and The Guardian have led an orchestrated assault against the high court’s Republican-appointed justices, and their message has been amplified by Senate Democrats.
Their motive? To cause the American people to question the legitimacy of some of the Supreme Court’s majority opinions that the Left does not like.
These publications are intimating, but not actually arguing, that the accused justices’ actions violated then-existing judicial ethics rules—they didn’t. Instead, the media outlets aim to generate skepticism about the justices’ ethics, integrity, and impartiality.
So far, these attacks on the high court’s conservative justices aren’t as dramatic as the demonstrations outside their homes—which have diminished but are still continuing—or as dangerous as the assassination attempt against one, Justice Brett Kavanaugh, in early June 2022. But the assaults on the six conservative justices—and by extension, the legitimacy of the entire nine-member court—have been equally fierce.
Although this deplorable trend has been brewing for a long time, things really ramped up in 2019, when Sen. Sheldon Whitehouse, D-R.I., and five other Senate Democrats filed an amicus brief in a Second Amendment case arguing that the Supreme Court is “not well” and that if it didn’t rule the way the Democrats wanted, the court might have to be “restructured.”
Shortly thereafter, Senate Majority Leader Chuck Schumer, D-N.Y., stood on the steps of the Supreme Court on the day an abortion case was being argued. Kavanaugh and Justice Neil Gorsuch had “released the whirlwind,” Schumer warned, and would “pay the price” if they continued making “awful decisions.”
If that’s not a threat, nothing is.
Democrats then began floating the idea of “packing” the Supreme Court by adding just enough justices to tip the balance from a majority of Republican appointees to a majority of Democratic appointees.
President Joe Biden, who said the Supreme Court was “out of whack,” convened a commission to study this and other potential reforms to the court. Many on the Left were upset when the commission didn’t offer a full-throated endorsement of their court-packing proposal.
To compound matters, Democrats in Congress are seeking to impose a new code of conduct on the justices that—if enacted despite a lack of constitutional authority to do so—would lead to an unrelenting stream of ethics charges and recusal motions.
These attacks are transparently partisan. Left-wing media outlets have set their sights on Supreme Court justices who were appointed by Republican presidents, while assiduously ignoring similar transgressions by liberal judges, including justices appointed by Democratic presidents.
Kavanaugh, of course, was accused of attempted rape during his Senate confirmation hearing. In a manner more worthy of The Babylon Bee, some even raised questions about how Kavanaugh paid for season tickets to the Washington Nationals baseball team.
Justice Clarence Thomas’ wife Ginni often has been slammed by the Left for her conservative political activism, and Thomas himself has been attacked for not recusing himself in cases in which his wife expressed personal views about the people involved.
Thomas, like Kavanaugh, was accused of sexual impropriety during his own confirmation hearing in 1991. He recently was accused of unethical conduct because trips he took were paid for by wealthy longtime friends and admirers.
Among them was Harlan Crow, a billionaire real estate developer who also paid for a year’s tuition for Thomas’ troubled great-nephew (at Crow’s urging). Crow also bought Thomas’ childhood home to turn it into a museum.
None of these friends was involved in any cases before the Supreme Court; pending cases weren’t discussed.
The Left’s latest “bombshell” is that a wealthy friend helped finance Thomas’ purchase of a recreational vehicle. Good grief! Not exactly Pulitzer material.
Justice Samuel Alito was pilloried for going to Rome to give a speech that was paid for by the University of Notre Dame’s Religious Liberty Initiative—a conservative group that promotes religious freedom. Alito also was criticized for going on a fishing trip to Alaska in 2008 that was paid for by hedge fund manager Paul Singer.
There is not a shred of evidence that Singer discussed Supreme Court business with Alito during that trip (or subsequently). Did Singer influence Alito? That’s highly doubtful.
Singer, whose son is gay, was a public advocate and financial supporter of groups that support same-sex marriage. Alito, of course, wrote a strong dissent in Obergefell v. Hodges, the 2015 case in which the Supreme Court “discovered” a constitutional right to same-sex marriage that somehow had eluded justices for well over 200 years.
The latest baloney from the Left calls for Alito to recuse himself from a case next term because he was interviewed recently by an attorney who works for the firm that will argue the case on behalf of the appellant.
I do not recall similar recusal requests from the Left when Judge Stephen Reinhardt of the U.S. Court of Appeals for the 9th Circuit refused to recuse himself from the constitutional challenge to California’s Proposition 8 on same-sex marriage. Critics noted that Reinhardt’s wife had spoken publicly about the case and her organization, the ACLU of Southern California, filed a friend-of-the-court brief in it.
Nor do I recall a word from the Left when D.C. Circuit Judge Nina Pillard refused to recuse herself in cases, including a challenge to the conditions of confinement of detainees at Guantanamo Bay in which the ACLU took a position, even though her husband is that organization’s national legal director.
Notorious Double Standard
Chief Justice John Roberts was assailed because his wife Jane is a legal recruiter (having left her lucrative job as a partner in a major law firm after Roberts was confirmed in 2005) who worked for some law firms that had business before the Supreme Court.
Gorsuch was vilified because he was the minority shareholder in a partnership that sold a home to a lawyer whose firm had business before the court. Gorsuch listed the sale on his financial disclosure form but failed to identify the buyer. The buyer, by the way, paid way less than the asking price and is a self-proclaimed Democrat who hasn’t met or spoken to Gorsuch.
Justice Amy Coney Barrett, who used to teach at Notre Dame Law School, was lambasted for selling her home to a member of Notre Dame’s Religious Liberty Initiative—the same group that paid for Alito’s trip to Rome.
One word comes to mind: Puhleeze!
The Left, of course, doesn’t want to talk about the many trips taken by the late Justice Ruth Bader Ginsburg that were paid for by third parties—including a trip to the Middle East that was paid for by billionaire Morris Kahn, who had cases before the court. Ginsburg took over 100 such trips, yet utter silence.
Or the fact that Ginsburg didn’t recuse herself from cases filed by the law firm where her husband was a partner. Utter silence.
Or the fact that in 2010, she accepted an award from the Woman’s National Democratic Club. Utter silence.
Or the fact that in 1998, she donated a signed copy of her 1996 opinion in the Virginia Military Institute case to the National Organization of Women, which auctioned it off. Utter silence.
Where were the calls from liberal outlets for Ginsburg to recuse herself from all cases involving the Trump administration after she said before the 2016 election that Donald Trump was a “faker” and that she could not imagine what the country would be like—and that she might have to move away—if he won?
More Failures to Disclose
Similarly, activists on the Left don’t want to talk about the many (well over 200) trips that Justice Stephen Breyer took that were paid for by third parties, including trips to Ireland and Spain that were paid for by billionaire J.B. Pritzker, the current Democratic governor of Illinois.
They don’t want to talk about Justice Sonia Sotomayor’s refusal to recuse herself from multiple copyright infringement actions involving Penguin Random House, the publisher of her memoir “My Beloved World” and several children’s books, which paid her an advance of $3.6 million.
They don’t want to talk about the fact that Sotomayor initially failed to disclose six trips paid for by outside groups in 2016.
They don’t want to talk about the fact that the high court’s newest member, Justice Ketanji Brown Jackson, failed to disclose that her husband has been paid for years as a medical malpractice consultant. Jackson also neglected to disclose the income she received from teaching, or the expenses paid by law schools and nonprofit organizations for trips she took to give speeches.
I am quite sure that all nine justices, who have had distinguished and fascinating careers, have wealthy friends and admirers who are inspired by them, like to spend time with them, and want to hear more about their lives and thoughts on a variety of issues.
The justices are busy people and (especially lately) traveling can involve security risks, so it is not surprising that they prefer to fly in a private plane or stay in more secluded accommodations if given the opportunity. Who wouldn’t?
The justices, after all, chose to forgo highly lucrative careers in private practice to dedicate themselves to public service, fully realizing that in short order their law clerks would be paid far more than them.
I seriously doubt that any of the matters outlined above affected how Supreme Court justices appointed by Democratic presidents ruled in any of the cases they considered, just as I find it inconceivable that these matters affected how any of the Republican appointees ruled. Their reputations mean far more to them than a nice meal or a comfy bed in a swanky resort.
A Dangerous Path
Mind you, nobody has credibly claimed that any actions taken by Republican-appointed justices violated any disclosure rules (which were recently amended) that existed at the time. Nonetheless, while liberals suggest that these situations likely affected conservative justices’ impartiality, the double standard and ulterior motives of those leveling these charges are obvious.
Now that liberals no longer are getting Supreme Court opinions that align with their policy preferences, they have chosen to question the court’s legitimacy. They seem determined to capitalize on any opportunity to smear the conservative justices.
Some liberal law professors have gone so far as to state that the best way to address their grievances is to urge Biden and other fellow travelers to simply ignore the Supreme Court—a dangerous path to tread, to be sure.
Sadly, these pernicious and baseless attacks on the high court’s integrity are having an effect. According to the latest Gallup poll, the court’s approval rating is at 40%—tied for its lowest rating since Gallup began conducting these polls in 2000—and its disapproval rating is at 58%, an all-time high.
In July 2021, I testified before the Presidential Commission on the Supreme Court of the United States, stating:
There have been times when the Court’s credibility has proven to be invaluable, such as the time when the Court proved to be an insistent yet stabilizing influence during the whole school desegregation effort following the Court’s decision in Brown v. Board of Education. The Court spoke. Some agreed, and some didn’t, but they all ultimately accepted the decision, obeyed the ruling, and did not respond with massive displays of violence, primarily because the public had confidence in the Supreme Court and in our judicial system.
The Court’s credibility has helped us through other tense times too. We should not take this for granted. Politicizing the Court, thereby creating the impression that the justices are just partisans in robes, risks undermining that credibility so that it won’t be there the next time we need it—and we will.
To preserve our system of separation of powers and checks and balances—and for the good of the country—these one-sided attacks on Republican appointees to the Supreme Court, and the unending assaults on the legitimacy of the court itself, have to stop.
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John G. Malcolm is the vice president of the Institute for Constitutional Government and director of the Edwin Meese III Center for Legal and Judicial Studies, overseeing The Heritage Foundation’s work to increase understanding of the Constitution and the rule of law.
Photo “Justices” by Supreme Court of the United States.