Supreme Court's Highly Anticipated Private Meeting: Unveiling Controversies of the Term

The Supreme Court reconvenes in Washington for a new term, confronted by the growing perception of being a politicized institution. Following a string of contentious rulings facilitated by former President Donald Trump's three appointed judges, notably the landmark reversal of Roe v. Wade, the justices now find themselves thrust into the heart of political discussions.

The opinions of the justices play a major role during the campaign trail, with approval ratings hitting record lows. Democrats in Congress have made a commitment to regulating the third branch, especially as allegations surface about justices potentially violating ethics rules and questioning the credibility of the court itself.

Unfortunately, their response has been lacking thus far. During public appearances, they attempt to emphasize the importance of judicial independence, but their stance on potential changes remains unclear.

Tuesday, the justices will meet in person for their first closed-door conference of the term.

Chief Justice John Roberts is at the center of it all.

The way he handles this term will determine the course of his tenure moving forward. Some argue that he will stay neutral and not get involved. However, others believe that he cannot risk staying out of the situation.

At the beginning of this year, Roberts refused an offer to attend a discussion on Supreme Court ethics led by the Democratic-led Senate Judiciary Committee, citing concerns about the separation of powers. In May, while speaking in front of an audience in Washington, Roberts stated his intention to reassure the public that the court is dedicated to maintaining the utmost level of behavior.

Clarence Thomas, an Associate Justice of the Supreme Court, is seen here at the ceremonial swearing-in event of Amy Coney Barrett as the U.S. Supreme Court Associate Justice. The ceremony took place on October 26, 2020, on the South Lawn of the White House in Washington, DC.

Tasos Katopodis/Getty Images/File

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In June, amidst ongoing controversy and a series of influential decisions that showcased ideological divisions, Chief Justice Roberts diverged from the main case by delivering an unexpected judgment. The 6-3 verdict invalidated President Joe Biden's plan for student loan forgiveness.

He argued that the tendency to criticize decisions they disagree with as exceeding the government's rightful role has become concerning.

His statement seemed to be a reaction to Justice Elena Kagan's dissent, supported by Justices Sonia Sotomayor and Ketanji Brown Jackson. Kagan initiated her dissent by stating, "In every aspect, the Court goes beyond its appropriate, limited role in governing our nation."

Roberts acknowledged her disagreement, emphasizing that it should not be misconstrued as criticism. In a written statement, he expressed concern about any potential harm to the institution and the nation resulting from such misinterpretation. It remained uncertain whether his remarks were aimed at dissenting colleagues, external critics, or both. Nevertheless, this departure from his typical reserved demeanor was notable, given that justices typically lack a prominent platform to defend their branch of government.

The way forward for Roberts is not obvious.

FILE PHOTO: U.S. Supreme Court Associate Justice Clarence Thomas is captured in a group portrait at the Supreme Court in Washington, U.S., on October 7, 2022. (Credit: Evelyn Hockstein/Reuters/FILE)

As Clarence Thomas experiences unprecedented levels of public disapproval, there is a growing demand among Americans for the implementation of an ethics code within the Supreme Court. It remains uncertain, however, whether unanimous support would be required for any progress in this matter. Conservative Justices Clarence Thomas and Samuel Alito, in particular, may oppose the proposition, contending that it would fail to appease critics whose true objective is to undermine the institution.

According to Cate Stetson, a lawyer at Hogan Lovells, she believes that Roberts will not take any action to promote additional disclosure reforms. Moreover, Stetson does not think that Congress will have enough influence to achieve significant progress in this matter.

Congress watching closely

But if the court does nothing, pressure will continue.

Senate Judiciary Chair Dick Durbin, a Democrat, visited the Supreme Court on September 12 as a distinguished guest at the yearly Judicial Conference - the governing body responsible for establishing policies for the federal courts. Positioned alongside the chief justice in his own domain, Durbin advocated for the implementation of a code of conduct that can be enforced, focusing specifically on the justices, as per an insider.

Roberts and his colleagues have consistently emphasized the challenges associated with implementing such a code, especially regarding matters of recusal.

In April, all nine justices issued a new statement aiming to offer "clarity" to the public regarding their ethical protocols. They highlighted their practice of consulting diverse experts to address specific ethical concerns. Additionally, they acknowledged that while lower court judges adhere to the code of conduct imposed by the Judicial Conference, the Supreme Court operates independently from the Conference's supervision.

The conversation on democracy held at the DeBartolo Performing Arts Center on the University of Notre Dame campus in South Bend featured U.S. Supreme Court Associate Justice Elena Kagan and G. Marcus Cole, the dean of the Notre Dame Law School. The event took place on Friday, Sept. 22, 2023, with Cole attentively listening to Kagan's insights.

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Supreme Court Justice Elena Kagan talks ethics and her relationship with the chief justice

The complications that set the Supreme Court apart from the lower courts are highlighted in the statement.

In lower courts, federal judges have the ability to take the place of each other if one judge withdraws from a case. However, this is not the case in the Supreme Court, as only its members have the authority to preside over a dispute.

The statement did little to assuage critics who argue that the justices can no longer abide by the rules that regulate judges in lower courts on a purely voluntary basis.

Response from the bench

Some conservatives argue that there is no imminent judicial crisis, claiming that critics of the court are fabricating a controversy to undermine the institution and impede the dissemination of conservative viewpoints. Carrie Severino, president of the conservative Judicial Crisis Network and former clerk for Justice Clarence Thomas, recently expressed on Twitter that corruption is not the primary issue.

"The issue lies in a well-coordinated effort by undisclosed interest groups, extremist politicians, and a compliant media to insinuate the presence of corruption, thereby eroding the credibility of the judicial system and unfairly tarnishing the reputation of the justices they hold opposing views towards," she expressed.

Alito, who authored the dissenting verdict that annulled Roe, has adopted a distinctly contrasting approach compared to the chief justice.

During a July interview published on The Wall Street Journal's editorial page, Alito expressed his belief that Congress should refrain from interfering with the affairs of the Supreme Court.

Acknowledging the controversy surrounding his viewpoint, he boldly stated, "I am willing to express this opinion: there is no provision in the Constitution that grants them the power to govern the Supreme Court - end of story."

Alito expressed astonishment at the excessive amount of unfounded criticism he has received over the past year. He acknowledged that despite facing relentless political attacks, he firmly disagrees with the belief that judges and justices should remain silent and rely on others to defend them. Alito recognized that if he wants to defend himself, he cannot rely on anyone else to do it for him.

He attempted to prevent the release of an unpublished ProPublica report, which raised allegations about his failure to disclose luxury travel from 2008. Throughout the summer, various justices were questioned about ethics and the legitimacy of the courts by friendly individuals at universities and judicial conferences, however, they never provided any specific responses.

Associate Justice Samuel Alito sits during a group photo of the Justices at the Supreme Court in Washington, DC on April 23, 2021.

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Contrary to Alito, Justice Elena Kagan implied in August that there might be some room for discussion regarding Congress's authority to regulate the Supreme Court. Recently, during a speech in Indiana, she expressed support for the idea of adapting the ethics code used by lower court justices to better suit the Supreme Court.

Meanwhile, Justice Amy Coney Barrett acknowledged that criticism towards the court has always existed. Speaking at a judicial conference in Lake Geneva, Wisconsin, she emphasized that such critiques are an integral part of the court's history. She further added that public criticism is an inherent aspect of being a justice.

Justice Brett Kavanaugh expressed optimism during his visit to Ohio that meaningful action would be taken in the near future to tackle the matter of ethics, but it remains uncertain if his hopes will be realized.

The justices face an additional obstacle as they try to find a response. Progress at the high court is sluggish, reflecting the tortoise, the unofficial mascot found at the base of bronze lampposts on the building grounds. These tortoises serve as a symbol for the gradual and unwavering pace of justice.

Almost nothing at the high court comes quickly, and the institution is not new to controversy. The justices may decide to ride out the storm.