What Will Fix the Supreme Court?

By Luke Pickrell

On Saturday, the Senate Judiciary Committee led by Democrat Dick Durbin released its report detailing the Supreme Court’s numerous ethical failings. To no one’s surprise, the report concluded that “Justices appointed by presidents of both parties have engaged in conduct that ranges from questionable to clearly violative of federal ethics laws, and several justices have done so consistently without suffering negative consequences.” As a result, the court is “mired in an ethical crisis of its own making.”

Some highlights. The late Justice Antonin Scalia had a decades-long habit of accepting lavish gifts from Republican donors with business before the court. Clarence Thomas (confirmed in 1991 by a Senate majority representing less than 50 percent of the population) has taken (continues to take?) bribes “for almost his entire tenure as a justice.” Justices nominated by presidents from both parties, particularly Samuel Alito, “regularly fail to identify obvious conflicts of interest that require their recusal under federal law.” And Chief Justice John Roberts couldn’t care less about enforcing the court's nonbinding code of ethics.

The Supreme Court is a total mess, and people are starting to notice. According to a Pew Research Center survey, fewer than half of Americans (47%) now express a favorable opinion of the court, while about half (51%) have an unfavorable view. The court’s favorable rating is 23 percentage points lower than in 2020. “Whether failing to disclose lavish gifts or failing to recuse from cases with apparent conflicts of interest,” said Durbin, “it’s clear that the justices are losing the trust of the American people at the hands of a gaggle of fawning billionaires.” How many people really believe Roberts’ claim that judges only call balls and strikes

Alexandria Ocasio-Cortez and Joe Biden's efforts to change the court were dead on arrival. Durbin will be replaced as head of the Judiciary Committee by 91-year-old Republican Chuck Grassley. Trump gets to fill any vacancies over the next four years. “If you’re a Democrat — or, really, anyone who believes in judicial ethics — it’s hard not to think that Justices Clarence Thomas and Samuel Alito are intentionally mocking you,” wrote journalist Ian Millhiser in June. Well, expect the mockery to continue.

The Supreme Court has always been undemocratic, but the level of overt corruption is becoming too much for some Democrats to handle.  Ocasio-Cortez is wrong to say that the court is “a threat not just to the American way of life and American democracy” because democracy has never existed in the U.S. Still, she’s right that the court threatens our lives. 

But what can be done? The “hard-wired” parts of the Constitution, including the unelected federal judiciary, are seemingly impossible, especially since Article V is unworkable. Durbin and company can only describe the putrid state of the court and head for the door. AOC can blast the court from the House floor, but that’s it. There simply is no constitutional way out of this mess.