Next term will be agonizing for the Supreme Court. Some combination of voters and courts will determine whether Donald Trump becomes president again and whether he goes to prison. President Joe Biden’s son has a case before the courts. Dozens of states have changed their voting laws since 2020 and the nine justices on the Supreme Court may be asked to look at them. If the presidential election in 2024 is close, the court may have to step in and adjudicate. With so much at stake, America needs a Supreme Court that is broadly seen as legitimate and, ideally, impartial. Regrettably, trust in the court is at its lowest point since pollsters began asking about it.
This is partly because of polarization. Supreme Court nominations are a knife-fight in the Senate: there is no longer even a pretense that confirming a justice should be above party politics. Four of the nine justices were nominated by the candidates who will probably contest next year’s presidential election. Thanks to brass-knuckle politics, lifetime tenure and quirks of fate, such as the timing of a liberal justice’s death, three were nominated by Mr. Trump. He refers to them as “my judges”, as if they worked for him, which they do not. Meanwhile many left-leaning Americans are outraged at recent rulings on abortion and racial preferences. All this has undermined faith in the court, and much of it is beyond the justices’ control.
What they can control are their own ethical standards. On this, some have fallen short. Harlan Crow, a Republican donor, bought a house from Clarence Thomas, flew him on a private jet, took him on cruises and paid private-school tuition for his great-nephew. Justice Thomas decided he did not need to disclose any of this, because Mr Crow is a friend — and the justices were not required to declare such hospitality. Neither did Samuel Alito divulge a ride he took on a private jet that was paid for by another Republican donor. When this was discovered by ProPublica, an NGO, Justice Alito complained that no reasonable person could accuse him of having flouted the rules.
It is fine for justices to have rich friends. Yet they also have a duty to the institution they serve. The most common accusation leveled at them is that they are partisans. They deny it, but the charge is easier to make when conservative justices nominated by Republican presidents holiday with conservative donors to Republican candidates and then appear to want to sweep it under their robes.
Most federal employees are barred from accepting any gift worth over $20. Members of the Supreme Court, by contrast, largely self-regulate. And lifetime tenure, which we have argued should be scrapped, fosters a sense of entitlement.
Last year Congress passed a law requiring more transparency about financial disclosures. It is too weak: under it, Justices Alito and Thomas can still decide what is reasonable for Justices Alito and Thomas to do. The same goes for the liberal justices, who have sometimes fallen short — though Sonia Sotomayor’s paid-for trips to various law schools sound less fun than Justice Thomas’s jaunts. That needs to be fixed before the court finds itself entangled in contentious political cases next year.
Democrats no longer have majorities in both houses of Congress, so further reform is unlikely to come through legislation. New standards will therefore have to be adopted by the court voluntarily. These should not be discretionary, but transparent and binding. That would be in the court’s interest because voters may otherwise conclude that some justices are less interested in the law than what they can get out of it. Now, of all times, America needs a court that is spotless and seen to be.
