High court credibility on the line

York Dispatch editorial board

The disclosure last week that Supreme Court Justice Clarence Thomas has for decades secretly accepted luxury vacations from a billionaire Republican donor is just the latest in a series of episodes that have tarnished the high court’s reputation and undermined its credibility.

If the nation’s highest judicial tribunal is to restore in any measure its standing with the public, its nine justices will need to reassess their decision-making in terms of both their legal opinions and their individual activities.

Public confidence on the high court was already at historic lows — and, frankly, has been plummeting since Chief Justice John Roberts took the reins in 2005.

FILE - Associate Justice Clarence Thomas joins other members of the Supreme Court as they pose for a new group portrait, at the Supreme Court building in Washington, Oct. 7, 2022. Thomas said Friday, April 7, that he was not required to disclose the many trips he and his wife took that were paid for by Republican megadonor Harlan Crow. The nonprofit investigative journalism organization ProPublica reported Thursday that Thomas, who has been a justice for more than 31 years, has for more than two decades accepted luxury trips from Crow nearly every year.(AP Photo/J. Scott Applewhite, File)

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In the 19 years Roberts’s predecessor, William Rehnquist, led the court, Gallup surveys found public confidence dipped below 40 percent just once — in October 1991, following the tawdry Senate confirmation hearing for none other than Thomas.

In contrast, the Roberts-led court has never managed to register more than a 40 percent Gallup approval rating. The most recent poll, in June of last year, found public confidence at a historic low of 25 percent. Even Republicans, who have benefited most from the hyper-conservative court, gave the body only a 39 percent vote of confidence.

The reasons for the spiraling esteem are many:

  • Senate Majority Leader Mitch McConnell’s abuse of the confirmation procedure to deny President Obama nominee Merrick Garland a hearing for almost a year while rushing President Trump nominee Amy Coney Barrett onto the bench in a matter of weeks.
  • The ugly confirmation hearings for Justice Brett Kavanaugh.
  • Implications by Kavanaugh, Coney Barrett and fellow Trump nominee Neil Gorsuch that the Rose v. Wade decision ensuring abortion rights was settled law and the subsequent vote by all three to overturn the law.
  • A leak of the court’s decision to overturn Roe, which has yet to explained.
  • The conservative majority’s willingness — eagerness, even — to issue controversial rulings via the so-called shadow docket. The maneuver, which expedites decisions by bypassing arguments, has been used by the court’s conservative bloc to rule on matters including partisan gerrymandering, capital punishment and the Environmental Protection Agency’s ability to enforce the Clean Water Act.
  • Strident partisan speeches before conservative organizations by the likes of Thomas and Justice Samuel Alito.

All of this before even considering decisions over the past decade or so that have not only made abortion illegal in about half the country, but have hollowed out the Voting Rights Act of 1965, opened the floodgates to unregulated dark money in elections, and subjugated personal rights to so-called religious freedoms.

So, there was a lot not to like even before ProPublica disclosed that Thomas and his wife, Ginni, have for years enjoyed globe-hopping vacations on private jets and yachts provided by billionaire real estate magnate Harlan Crow, as well as annual retreats in Crow’s Adirondacks resort. The tally for these luxury excursions is well into the millions, yet Thomas disclosed not a penny of it.

His explanation was kind of a hoot: “Harlan and Kathy Crow are among our dearest friends,” he said in a written statement. “As friends do, we have joined them on a number of family trips during the more than quarter century we have known them.”

Friends don’t let friends foot the bill for 20 years.

Thomas went on to say he conferred with colleagues and others in the judiciary and was advised he needn’t disclose the “personal hospitality.” How convenient.

Thomas will need to report such hospitality going forward. The Judicial Conference of the United States adopted new, stricter guidelines last month.

All well and good (and, obviously necessary) but adhering to more stringent guidelines isn’t the high court’s ticket to restoring public confidence.

For starters, Roberts needs to corral his fellow justices into establishing a formal code of ethics. Lawmakers and even apolitical groups like the American Bar Association are pushing for this obvious and overdue step.

Restoring the shadow docket to its intended use for emergency and procedural rulings, and having justices sign decisions, is another necessary step.

Ultimately, public confidence in the court may not climb until the body more accurately reflects the nation. A 6-3 conservative makeup with a majority of justices nominated by presidents who ascended to office without winning the popular vote is hardly representative of the American people or the national leaders they’ve endorsed.

But that day is far off. In the meantime, Roberts will need to take a firmer hand on ethics and show-docket abuses if he’s to shore up the court’s legacy. And his own.