The political left and its allies in the media have spent the past month putting the Supreme Court on trial for supposed ethical lapses. During a Senate Judiciary Committee hearing on May 2 entitled “Supreme Court Ethics Reform,” we were told that the solution to this emergent crisis is for Congress to mandate that Supreme Court justices be subject to investigations and discipline.
This mandate, which some noted attorneys have said likely violates separation-of-powers principles, would be imposed by Congress on an independent branch of government and would be in addition to the Statement of Ethics, Principles, and Practices to which every member of the Court recently has ascribed.
The sudden moral panic over judicial ethics purportedly is being driven by revelations that members of the Court, namely Justices Clarence Thomas and Neil Gorsuch, did not adequately disclose certain activities—none of which actually support a violation of any applicable code of conduct. These activities—receiving gifts from friends and engaging in financial transactions—have been examined and suggestions that they constitute unethical conduct debunked.
Yet the panic continues because its aim is not to bring about any genuine ethical reform, but rather to intimidate and discredit a Court that has proven willing to hold both itself and the coordinate branches of government accountable to the Constitution.
To be sure, American political history is replete with examples of turf battles among Congress, the executive, and the courts. Indeed, James Madison anticipated these turf battles as a feature, not a bug, of the political system devised by the Founders. He observed, in Federalist 51, that the “great security against a gradual concentration of the several powers” of the three branches lay in giving those who populate each branch “the necessary constitutional means and personal motives to resist encroachments of the others.”
And modern political leaders have been unafraid to throw elbows in public, such as when President Barack Obama famously expressed his disagreement with the Supreme Court’s Citizens United decision during his 2010 State of the Union Address.
This intramural sparring from the not-so-distant past, however, is different in kind from the present ideologically driven assault on justices—an assault with beginnings that can be traced to the death of Justice Ruth Bader Ginsburg and the subsequent appointment of now-Justice Amy Coney Barrett. That series of events led to demands by prominent Democrat politicians that consideration be given to expanding the size of the Court, also known as “court packing.” These demands were explained by prominent left-wing political scientist Aaron Belkin as a means to “un-steal” a Court that had purportedly been “stolen” by conservatives.
The rhetoric only intensified last summer after the Court issued a series of originalist and textualist decisions safeguarding Second Amendment rights, cabining the federal regulatory state, and — most significantly — overturning Roe v. Wade. That final decision, Dobbs v. Jackson Women’s Health Organization, led progressive commentators to declare that the “politicization of the Supreme Court is eroding its legitimacy.
Attorney General Merrick Garland announced that the Dobbs decision “upended the doctrine of stare decisis, a key pillar of the rule of law.” And President Joe Biden called Dobbs the “culmination of a deliberate effort over decades to upset the balance of our law” and the “realization of an extreme ideology and a tragic error by the Supreme Court.”
These overreactions, of course, are wholly disproportionate to the profound, but modest, reasoning of Dobbs, which corrected a 1973 opinion whose “reasoning was exceptionally weak,” that created a “right” found nowhere in the text of the Constitution, and that was “egregiously wrong from the start.” And, ironically, the effect of which is to return regulation of abortion to the people and elected lawmakers, some of whom are leading the effort to besmirch the Court’s reputation.
Returning the question of abortion to elected lawmakers is not, however, what many activists and officials desire. Almost immediately after Dobbs was decided, President Biden announced a comprehensive federal administrative plan to drive an extreme abortion agenda. That agenda, in short, seeks to invalidate state laws that provide protections for unborn human life by creating, via federal regulatory fiat, a lightly regulated mail-order abortion economy in which the abortion drug mifepristone can be shipped between states following online consultations with providers.
This scheme not only violates existing federal law, it directly undermines the promise of Dobbs that the question of abortion would be returned “to the people and their elected representatives.” And so, the scheme is now under challenge on multiple fronts in federal courts, and those challenges may soon reach the Supreme Court.
It would not be unreasonable to believe the current “ethics” scare is in part retribution and in part a warning to justices who may have the temerity to once again hold the administrative state accountable to the law. Indeed, lower courts that have touched the case already have been the subject of coordinated, and debunked, character attacks. And at least one writer has candidly agreed that it is “in the interest of the progressive movement to undermine the Court’s legitimacy” because threatening the Court’s perceived legitimacy would force it to bend to political considerations.
We have crossed a Rubicon of sorts. As Justice Samuel Alito recently observed, “It’s one thing to say the court is wrong; it’s another thing to say it’s an illegitimate institution.” The first fulfills the checking function Madison envisaged in Federalist 51. The second, however, damages the integrity of the vital institution of self-government for short-term political gain.
Unfortunately, those on the left seem all too willing to place the integrity of the Court in the dock for purely political advantage.