OPINION: Justices have the power to make and unmake our laws and to uphold or overturn our civil rights. In exchange for that awesome power, the least we should expect is that these judges meet the highest standards of ethical conduct.
Editor’s note: The following article is an op-ed, and the views expressed are the author’s own. Read more opinions on theGrio.
From Dred Scott to Brown to Shelby County, Black folks know the significant role the federal courts have played in extending or limiting our ability to enjoy full citizenship. Recent ethical scandals throughout the federal judiciary have undermined our civil rights, racial justice and other essential freedoms. Allegations of leaks and conflicts of interest threaten the public’s right to impartial judgment and their faith in the courts.
The Supreme Court refuses to implement basic reforms like creating binding ethics rules. Although the justice system is supposed to be “blind,” history is replete with examples to the contrary. For example, federal law requires federal judges, including Supreme Court justices, to recuse themselves from any case in which their impartiality might reasonably be questioned, and yet, in 2021, the Wall Street Journal revealed at least 131 federal judges, spanning the ideological spectrum, violated the law by hearing cases in which they had a financial tie to one of the parties. Since 2015, six Supreme Court justices have participated in a case where they had a financial conflict. Although recent legislation has improved financial disclosure requirements, these conflicts could impact cases across the country, including those related to environmental justice, civil rights, workplace discrimination and myriad other issues relevant to Black communities.
One obvious way the Supreme Court’s lack of ethical accountability harms Black communities is by affording wealthy white activists opportunities to influence the justices through seemingly legitimate means. Last year, following the leak of the Dobbs decision invalidating the right to abortion care, Rev. Robert Schenck, a white evangelical leader and former anti-abortion activist, testified before Congress about how he used wealthy benefactors to befriend conservative justices and how one of them allegedly leaked information regarding another Supreme Court decision. Schenck’s “Operation Higher Court” relied on wealthy activists donating money to the Supreme Court Historical Society to socialize with justices and strengthen their resolve to overturn Roe v. Wade.
Government watchdog Citizens for Responsibility and Ethics in Washington (CREW) testified at the same hearing, noting that due to the court’s “derelict ethics regime, Mr. Schenck and his numerous wealthy confidants and benefactors were able to buy unparalleled access to the Supreme Court” to lobby regarding overturning Roe among other cases. As the National Urban League wrote following the Dobbs leak, the decision “puts Black women in particular danger. Black women are 2.5 times more likely to die as a result of childbirth than white women.” Regardless of one’s view of the decision, Schenck’s exploitation of the court’s lax ethics regime demonstrates that some people could buy access to the justices, while advocates on behalf of Black women were left to write amicus briefs and strongly worded letters.
Although financial conflicts and influence peddling at the Supreme Court have drawn recent headlines, concerns regarding the justices’ treatment of spousal conflicts have persisted for some time. Justice Clarence Thomas has been under fire for years regarding his continued failure to recuse from cases in which his wife has a direct interest. For example, in 2017, Justice Thomas participated in a case related to Donald Trump’s Muslim ban where an individual who submitted a “friend of the court” brief reportedly paid his wife $200,000 in consulting fees. Last year, Justice Thomas also failed to recuse from Trump v. Thompson, where he was the lone vote to block the release of Trump administration documents requested by the January 6th Committee.
He participated in this case despite his wife’s communications with Trump administration officials about overturning the election that were potentially subject to disclosure. Ginni Thomas’ support of the Big Lie was part of a coordinated effort to invalidate Black voters, and her husband’s participation, in this case, was a breach of his duty. Later this year, Justice Thomas will opine on an affirmative action case where his wife advises an entity that filed a brief opposing the policy. While all judicial conflicts of interest are problematic, Justice Thomas’ failure to recuse from these cases goes even further, potentially violating federal law and threatening our democracy and the rights Black Americans have long fought for.
The glaring conflicts of Justice Thomas and other justices have increased public pressure for the Supreme Court to adopt a binding ethics code and a transparent, independent process for deciding when the justices should recuse themselves from participating in a case. Unfortunately, Chief Justice John Roberts has repeatedly rebuffed these demands. On Capitol Hill, members like Reps. Hank Johnson (D-Ga.) and Darrell Issa (R-Calif.), among others, have championed judicial ethics reforms, which resulted in President Biden signing bipartisan legislation into law last year requiring online publication of federal judges’ financial disclosure statements. But more needs to be done. Fortunately, Congress is considering imposing measures to help prevent ethical lapses and strengthen the court’s capacity to protect the rights of all Americans.
Justices have the power to make and unmake our laws and to uphold or overturn our civil rights. This power has had and will continue to have an especially acute impact on whether and how Black Americans can enjoy the full promise of America. In exchange for that awesome power, the least we should expect is that these judges meet the highest standards of ethical conduct.
Donald K. Sherman serves as CREW’s Senior Vice President and Chief Counsel. Prior to joining CREW, Sherman served in various roles in the House, Senate, and the Executive Branch including, most recently, as Special Assistant to the President for Racial and Economic Justice in the Biden-Harris White House.
Yvette Badu-Nimako is the Interim Executive Director and Vice President of Policy for the National Urban League’s Washington Bureau, where she provides expertise on civil rights, social justice, federal courts, and constitutional issues on behalf of the organization.
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