“[T]he Supreme Court . . . [will] have a right, independent of the legislature, to give a construction to the Constitution and every part of it, and there is no power provided in this system to correct their construction . . . . Men placed in this situation will generally soon feel themselves independent of heaven itself.” (Brutus, Anti-Federalist Papers, 1788).
Is the United States Supreme Court above the law? In the aftermath of the court’s 2022-2023 term, the age-old question has arisen with renewed urgency. And it’s not just the court’s many liberal and progressive critics who think the nation’s most powerful judicial body has assumed nearly imperial powers that place it beyond any meaningful accountability. Ironically, Justice Samuel Alito appears to see the court in a similar light, albeit from a decidedly different perspective.
In a July interview with The Wall Street Journal, Alito said the not-so-quiet part out loud, remarking, “Congress did not create the Supreme Court”; the Constitution did. “I know this is a controversial view, but I’m willing to say it. No provision in the Constitution gives them the authority to regulate the Supreme Court—period.”
Alito’s interview came on the heels of an acerbic op-ed he penned for the Journal in late June, in which he lambasted a ProPublica report that in 2008 he took a luxury fishing trip to Alaska, flying for free aboard a private jet owned by Republican megadonor Paul Singer. The problem, according to the article, wasn’t just that Alito had failed to recuse himself from reviewing numerous lawsuits involving Singer’s hedge fund that came before the court after the Alaska trip. He also failed to disclose anything about the excursion on the annual financial disclosure forms all high-ranking federal officials are required to file under the Ethics in Government Act of 1978.
Justice Samuel Alito claimed he had no duty to disclose the fishing trip, reasoning that his seat on the private jet “would have otherwise been an unoccupied seat” if he had not accepted the billionaire’s offer of a free ride.
In his op-ed, Alito claimed he had no duty to disclose the fishing trip, reasoning that his seat on the private jet “would have otherwise been an unoccupied seat” if he had not accepted the billionaire’s offer of a free ride, and that gifts of “hospitality” need not be revealed. He also wrote that there was no need for recusal because he had not known—and given his busy schedule, had no reason to know—that Singer had a personal interest in any of his fund’s legal cases. Yet in 2014, with Alito participating in oral argument and voting as part of a 7-1 majority in Republic of Argentina v. NML Capital, Ltd., the court handed Singer’s company a major victory, paving the way for it to recover $2.4 billion from the financially strapped South American nation.
As embarrassing as Alito’s alleged misfeasance is, it pales in comparison to the manifold scandals swirling around Justice Clarence Thomas. On April 6, ProPublica reported that Thomas and his insurrectionist-adjacent wife, Ginni, took a 2019 trip to Indonesia on Texas real estate magnate Harlan Crow’s Bombardier Global 5000 jet, followed by a nine-day island-hopping cruise aboard Crow’s superyacht. ProPublica valued the junket at more than $500,000, nearly double Thomas’s annual salary of $285,000.
One week later, ProPublica updated its initial scoop to add that in 2014, Crow purchased a two-bedroom home in Savannah, Georgia, where Thomas’s mother lived, and two nearby vacant lots, for a total of $133,363, driving up the property values of the parcels. The home was jointly owned by Thomas, his mother, and the family of the Justice’s late brother. The Justice neglected to include either the real estate deal or the Indonesia freebie on his disclosure forms.
It would be bad enough if the handouts Thomas received ended with Crow, but they did not. In yet another lengthy investigative piece published in August, ProPublica alleged that during his three decades on the Supreme Court, Thomas has been treated to at least thirty-eight unreported “destination vacations” paid for by “a cadre of industry titans,” such as H. Wayne Huizenga, the late billionaire “who turned Blockbuster and Waste Management into national Goliaths”; oil tycoon Paul “Tony” Novelly; and David Sokol, a former top executive at Berkshire Hathaway.
Senate Democrats have reacted with disgust to the Thomas and Alito revelations. On July 20, the Senate Judiciary Committee voted 11-10 along party lines to advance The Supreme Court Ethics, Recusal, and Transparency Act of 2023 to the floor of the upper chamber. If enacted, the bill would require Supreme Court Justices to adopt a code of conduct, create a mechanism to investigate alleged violations of the code of conduct and other laws, improve disclosure and transparency when a Justice has a connection to a party or amicus curiae (“friend of the court”), and would require Justices to explain their recusal decisions to the public. Currently, the Supreme Court is the only federal judicial panel that operates without a binding code.
Sadly, there is little prospect of the measure becoming law, both because of Republican opposition and the intransigence of Chief Justice John Roberts. In April, Roberts declined an invitation from the Senate Judiciary Committee to testify about the need for ethics reform. Instead of appearing, he dispatched a terse letter, explaining that testimony by the “Chief Justice of the United States is exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.”
Roberts attached to his letter a six-page “Statement on Ethics Principles and Practices,” signed by all nine sitting Justices, asserting that there is no need for legislative reform because the Justices are all upstanding public servants who regularly “consult a wide variety of authorities to address specific ethical issues,” including “judicial opinions, treatises, scholarly articles, disciplinary decisions,” and the Judicial Code of Conduct, which the statement acknowledged only applies to the lower federal courts.
As embarrassing as Justice Samuel Alito’s alleged misfeasance is, it pales in comparison to the manifold scandals swirling around Justice Clarence Thomas. to the October 2023 Term.
Roberts’s snub of the committee was consistent with his record of insulating the court from Congressional oversight and, by extension, the broader Constitutional framework of checks and balances. In his 2011 year-end report on the state of the federal judiciary, he articulated a position on Congressional oversight in line with Alito’s recent posturing, writing, “Article III of the Constitution creates only one court, the Supreme Court of the United States, but it empowers Congress to establish [and regulate] additional lower federal courts that the Framers knew the country would need.” And in 2012, he rejected an earlier judiciary committee call for the adoption of a binding ethics code in response to complaints that Thomas had failed to note on his disclosure forms at least six years worth of his wife’s income from the Heritage Foundation, Hillsdale College, and other employers.
Impervious to the political clamor, the court marches on, conducting business as usual, and driving American jurisprudence hard to the right. Equipped with the power of judicial review that gives it the authority to overturn acts of Congress and the executive, the court’s Republican majority has overturned past precedents and issued a blistering succession of reactionary rulings during Roberts’s tenure, on voting rights, gerrymandering, union organizing, the death penalty, environmental protection, gun control, abortion, separation of church and state, campaign finance, and the use of dark money in politics.
The October 2022-2023 term continued this trend (see “Looking Back,” below).
In a ruling published on May 25 (Sackett v. Environmental Protection Agency), the court gutted the Clean Water Act (CWA) of 1972. Writing for the majority, Alito redefined the term “waters of the United States,” as used in the CWA, to refer exclusively to navigable “streams, oceans, rivers, and lakes,” and wetlands having “a continuous surface connection” to such bodies. Wetlands with only subsurface or seasonal connections to larger waters, including many of those that provide vital flood control benefits and promote biodiversity along the Mississippi Delta and the Chesapeake Bay, will no longer be covered by the act. The ruling will remove an estimated 90 million acres of precious wetlands from the EPA’s oversight authority, and represents a resounding triumph for land developers and mining, oil, and agricultural interests that have long complained about alleged EPA overreach.
But it was not until the very end of June that the court proved it had not lost its appetite for the kind of transformational legal decisions that saw it overrule Roe v. Wade in 2022. The first shoe to drop came in a pair of consolidated cases decided on June 29 (Students for Fair Admissions, Inc. v. University of North Carolina and Students for Fair Admissions, Inc. v. Harvard College) that broke with decades of Supreme Court precedent, striking down race-conscious affirmative action admissions programs at colleges and universities as unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.
The very next day, the court invalidated President Joe Biden’s student loan forgiveness plan (Biden v. Nebraska) and upheld the First Amendment right of a Colorado graphic artist engaged in a business open to the public to refuse to create websites for same-sex couples (303 Creative LLC v. Elenis).
According to Chief Justice John Roberts, there is no need for legislative reform because the Justices are all upstanding public servants.
The decisions in all three of the cases from late June will have profound and widespread societal effects. Simulations conducted by researchers from Georgetown University indicate that ending affirmative action in admissions will lead to a marked reduction of ethnic diversity on campuses across the country, particularly for selective colleges and universities (defined as those admitting fewer than 50 percent of applicants). Similarly, experts predict that 303 Creative will have a dangerous impact on the LGBTQ+ community, which faces discrimination in contexts far beyond website designs.
But of the three rulings, the student loan decision may be the most pernicious, demonstrating the disingenuous lengths to which the court’s conservative supermajority—now six members strong, with three Justices nominated by Donald Trump—is willing to go to advance what is plainly a political agenda.
Writing for the 6-3 supermajority, Roberts quashed Biden’s debt relief program, which would have benefitted an estimated 43.5 million borrowers with an average unpaid balance of $37,574. To do so, the Chief Justice invoked a once obscure legal theory called “the major questions” doctrine, which holds that administrative actions that affect issues of “great social importance” are invalid unless they are expressly and precisely authorized by Congress.
Like the doctrine of “equal state sovereignty” that Seventh Circuit Court of Appeals Judge Richard Posner, in a Slate column, accused Roberts of creating out of thin air to gut the Voting Rights Act in Shelby County v. Holder (2013), the major questions doctrine is a made-up principle created by the court itself. It is nowhere to be found in the text of either the Constitution or any federal statute.
Although the concept first appeared in Supreme Court decisions in the 1990s, the phrase itself appeared only once in a federal appellate opinion before 2017, according to William & Mary Law School Professor Allison Orr Larsen. The Roberts Court has given it a formal title and wielded it as a cudgel against progressive initiatives undertaken by federal regulatory agencies. In 2021, the court invoked the doctrine to strike down the Centers for Disease Control and Prevention’s moratorium on residential evictions. In 2022, it used the same theory to quash the Occupational Safety and Health Administration’s vaccine-or-test mandate for large employers, and the EPA’s plan to impose an industry-wide carbon emission cap on power plants.
In all likelihood, the doctrine will make a curtain call when the court reconvenes in October to adjudicate the constitutionality of the Consumer Financial Protection Bureau and to review other cases that will give it more opportunities to dismantle the regulatory framework of the “administrative state” and roll back the legal gains of the civil rights movement (see “Looking Ahead,” below).
In the meantime, as a direct consequence of its ethics scandals and rapid lurch to the right, the Supreme Court’s public approval ratings have plummeted to historic lows, triggering a crisis of legitimacy and accountability with no apparent end in sight.
Looking back
Highlights of the October 2022 Term:
Twitter, Inc. v. Taamneh and Gonzalez v. Google LLC
Two lawsuits seeking to hold the social media giants responsible for hateful posted content are rejected.
Sackett v. Environmental Protection Agency
The Clean Water Act is gutted by redefining the legal definition of wetlands.
Students for Fair Admissions, Inc. v. University of North Carolina and Harvard College
The use of affirmative action in college admissions programs is ruled unconstitutional.
A federal prison inmate cannot file a claim of innocence in a “successive,” or second, habeas corpus petition, and is limited to one petition.
President Biden’s student debt relief program is overturned.
The First Amendment prohibits Colorado from forcing a website designer to create expressive designs for same-sex couples.
Glacier Northwest, Inc. v. International Brotherhood of Teamsters
The National Labor Relations Act does not preempt state tort claims related to alleged destruction of company property during a strike.
Alabama’s Congressional map is an invalid racial gerrymander under Section Two of the Voting Rights Act.
Health and Hospital Corporation of Marion County, Indiana v. Talevski
A civil rights action is approved under the Federal Nursing Home Amendments Act of 1987.
Texas and Louisiana lack standing to challenge the Biden Administration’s deportation priorities.
The “independent state legislature” theory is rejected.
The Indian Child Welfare Act is upheld.
Looking Ahead
The court is still filling its docket for the next session, but thus far has agreed to review several cases with blockbuster issues:
Consumer Financial Protection Bureau v. Community Financial Services Association of America, Ltd.
Is the statutory funding scheme for the Consumer Financial Protection Bureau unconstitutional?
Do federal whistleblowers have to prove employers acted with retaliatory intent to succeed in a retaliation claim?
Alexander v. South Carolina State Conference of the NAACP
Is a portion of South Carolina’s Congressional map a racial gerrymander that violates the Voting Rights Act?
Do public officials engage in conduct prohibited by the First Amendment when they block an individual from their social media accounts?
Loper Bright Enterprises v. Raimondo
Should the court overrule Chevron v. Natural Resources Defense Council, which holds that courts should defer to a government agency’s interpretation of a statute it administers?
Do individuals subject to domestic violence restraining orders have a Second Amendment right to own firearms?
Are taxes on wealth Constitutional under the Sixteenth Amendment?