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Donald Scarinci, founding partner of Scarinci Hollenbeck. (Photo: Donald Scarinci.)

Scarinci: U.S. Supreme Court’s New Year’s Resolution: Restore Public Trust

By Donald Scarinci, January 03 2023 5:26 pm

As many of us make our New Year’s resolutions for2023, we must hope that the United States Supreme Court will do the same. After a series of contentious nominations, controversial decisions and at least one high-profile leak, the high court is facing it’s most serious trust problem since Franklin Roosevelt’s Presidency.

Americans Have Lost Confidence in the Court

According to a June 2022 Gallop poll, public confidence in the Supreme Court has reached record lows. Just 25 percent of Americans have confidence in Supreme Court, compared to 36 percent in 2021.Two decades ago, the figure was 50 percent. A more recent poll conducted after the Supreme Court issued its controversial abortion decision overturning Roe v. Wade revealed that a record-high 58 percent disapprove of the job the Supreme Court is doing.

The politicization of the Supreme Court has clearly played a significant role in its declining reputation, but it’s likely not the only cause. The leak of the Justice Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, Ginni Thomas’s texts with Donald Trump’s White House chief of staff, and recent admissions by Reverend Robert Schenck that he actively lobbied conservative justices to overturn Roe have all contributed to the loss of faith in the Court.

Boosting Transparency at the Supreme Court

The Supreme Court has historically operated outside of the public eye. While oral arguments are open to the public, cameras are not allowed. The justices also rarely publicly discuss their deliberations or decisions prior to releasing an opinion.

The justices are also largely left to police themselves when it comes to conflicts of interest and other ethics concerns. In fact, the Supreme Court is the only court in the nation that doesn’t have a code of ethics.

Allowing the Court to work in secret reflects the special role it plays as the highest court in the land, as well as the need for the justices to operate outside of the media/political circus that often dominates Washington, D.C. But with critics arguing that the Court is no longer “above the fray,” increasing transparency is one way that the Court can win back the trust of the American people.

Of course, there is much debate over what types of reforms will lead to meaningful change and restore public trust. From an ideological standpoint, one side — either liberals or conservatives — will always be unhappy. Legislation currently under consideration in Congress would instead seek to establish a code of conduct and strengthen financial disclosure requirements.

Under the Supreme Court Ethics, Recusal, and Transparency Act, the Supreme Court would be required to adopt a code of conduct within 180 days, or Congress would impose the lower court code of conduct on the Court. With regard to financial disclosures, the legislation requires the Supreme Court to adopt rules requiring disclosure rules for gifts, travel, and income received by justices and law clerks that are at least as rigorous as the House and Senate disclosure rules. It also mandates that parties and amici curiae before the Supreme Court disclose any gifts, travel, or reimbursements they’ve given to a justice.

The Supreme Court Ethics, Recusal, and Transparency Act also establishes new recusal requirements governing gifts, income, or reimbursements given to all federal judges, as well as recusal requirements governing a party’s lobbying or spending money to campaign for a judge’s confirmation. Requests for a judge to recuse would be reviewed by a panel of randomly selected, impartial judges, or by the rest of the justices at the Supreme Court. Additionally, the legislation requires written notification and explanations of recusal decision.

Regardless of what Congress does, the Court also has a duty to address its own legitimacy by deciding cases without regard for their personal ideologies. As Justice Elena Kagan recently said,  “Judges create legitimacy problems for themselves when they don’t act like courts” and “when they instead stray into places that look like politics.”

 

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