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Judicial system reform in US might be a pipe dream

The Boston Globe
Posted 1/14/25

A year of widening political divisions ended with the sobering news that confidence in the nation’s judicial system has also taken a hit, dropping to a record low 35 percent, according to the …

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Other Views

Judicial system reform in US might be a pipe dream

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A year of widening political divisions ended with the sobering news that confidence in the nation’s judicial system has also taken a hit, dropping to a record low 35 percent, according to the most recent Gallup poll.

Between 2020 and 2024, public confidence in the judicial system plummeted 24 points — from 59 percent to 35 percent — a precipitous decline.

Sure, there was the U.S. Supreme Court decision overruling Roe v. Wade and overturning 50 years of abortion rights. And judicial decisions at several levels involving the possible prosecution of President-elect Donald Trump and presidential immunity. But a report released recently by Democrats on the Senate Judiciary Committee on the ethical challenges facing the nation’s highest court — and its inability to deal with them — gives already skeptical Americans a host of new reasons to be less than confident in those sworn to deliver fair and impartial justice.

The 20-month investigation — in which committee Republicans refused to participate — found newly discovered evidence of ethical lapses by Supreme Court Justice Clarence Thomas in connection with his three-decade relationship to Texas billionaire Harlan Crow, but it also faulted the Judicial Conference, the policymaking body for the federal courts, for its failure to police the system.

“Now more than ever before, as a result of information gathered by subpoenas, we know the extent to which the Supreme Court is mired in an ethical crisis of its own making,” Committee Chairman Dick Durbin said in a statement. “It’s clear that the justices are losing the trust of the American people at the hands of a gaggle of fawning billionaires.”

The probe turned up two previously unreported trips in 2021 by Thomas courtesy of Crow — on top of the numerous trips and gifts previously reported by ProPublica — but also faulted Thomas and Supreme Court Justice Samuel Alito for recent failures to recuse themselves when cases before the court posed potential conflicts of interest. Thomas sat on cases involving the 2020 presidential election and the Jan. 6, 2021, insurrection despite his wife’s involvement in the “Stop the Steal” movement, the report noted. And Alito refused to recuse himself in Jan. 6-related cases even after his wife flew politically charged flags at their homes.

“The Supreme Court has mired itself in an ethical crisis of its own making by failing to address justices’ ethical misconduct for decades,” the report said. “Despite post-Watergate Congressional efforts to renew faith in all three branches of the federal government through ethics legislation, the Supreme Court has allowed a culture of misconduct to metastasize into a full-blown crisis that has driven public opinion of the Court to historic lows.”

Disclosures of gifts and travel, after all, have a purpose. That purpose is to alert the public to the potential for bias — the kind of bias or appearance of bias that would require any self-respecting judge to recuse himself from a case.

But the committee report, some 93 pages accompanied by 800 pages of related documents, faults not just the justices but the Judicial Conference, which, it notes, for decades “has failed to adequately perform financial disclosure reviews, conduct investigations, and respond appropriately to ethical misconduct complaints against the justices.” The Judicial Conference is made up of the chief judge of each judicial circuit, a district judge from each regional circuit, and the chief judge of the Court of International Trade. Its work is done largely in its nearly two dozen committees, including one on codes of conduct and another on financial disclosure.

But the failures of what is essentially a peer-review process to adequately police what for decades in the cases of the late Supreme Court Justice Antonin Scalia and Thomas was laughingly called “personal hospitality” by their billionaire buddies are now notorious. In fact, as recently as September, the report notes, the conference attempted to “clarify” the rules allowing exemptions for disclosures of gifts of food, travel, lodging, and entertainment but ended up broadening the exemption to include that offered not just at properties owned by an individual but those owned by a corporate entity.

And when it is confronted by a request to investigate — as it was in April 2023 by a referral from congressional Democrats to investigate Thomas’s financial disclosures — its response has thus far been none at all.

A number of Senate Democrats, most prominently Sen. Sheldon Whitehouse of Rhode Island, have filed legislation aimed at requiring the Supreme Court to adopt a binding code of conduct with a mechanism to investigate and enforce its provisions. Chances of its passage in a Republican-controlled Congress with Donald Trump in the White House are virtually nonexistent.

But that’s not to say the conference — with some help from Congress — couldn’t clean up its act in some more modest ways. The report suggests a change to the Ethics in Government Act, which governs financial disclosure, to require retention of those disclosure statements well beyond the current six-year period currently in force for the judiciary. After all, lifetime tenure may mean careers lasting decades. Why shouldn’t those reports be retained throughout a judge’s tenure?

The report also recommends additional staff for the conference to help review those reports too, and for the conference to review its own process to assure the reports are accurate — rather than waiting for the press to track down unreported trips and dubious “hospitality” accepted by judges.

The Gallup poll — which focused not on the Supreme Court but on the judiciary as a whole — should provide a wake-up call to members of the Judicial Conference that it’s their reputations and credibility on the line too, not just that of the well-traveled Thomas. It’s time this too quiescent body took some responsibility for policing its high court colleagues.