The crisis in legitimacy in American political institutions is palpable. Radical partisan and racial gerrymandering have undermined confidence in legislatures across the country—and contributed to outrages like the expulsion of Black lawmakers in Tennessee. Radical district judges in Texas have abused their authority in order to attempt to force nationwide bans on an abortion medication and on critical parts of the Affordable Care Act. But nowhere is the challenge greater than in the United States Supreme Court. Over the past couple of months, astonishing reporting has come out about the financial relationship between Justice Clarence Thomas and his apparently billionaire benefactor, a man named Harlan Crow, whose relationship with Thomas only began after Thomas ascended to the highest court. Other reports about other justices have followed, though none quite so extraordinary.
It is past time for a serious response—one that goes beyond merely adding the Supreme Court to the code of conduct that applies to all other federal judges. We need an independent authority to enforce basic ethical standards for the highest court in the land.
It seems difficult to build an ethics system from scratch for a centuries-old institution, but there happens to be an excellent model for this. In 2008, after a protracted process and struggle, the U.S. House of Representatives created an independent Office of Congressional Ethics, or OCE. The effort to create an independent component to enforce ethics in Congress had gone on for decades. But it succeeded in major part because of an outrageous scandal: In 2005, then-Speaker Dennis Hastert ousted the conservative Republican chair of the House Ethics Committee, Colorado’s Joel Hefley, and two other Republican members, because they had done their job and chastised Majority Leader Tom DeLay for repeated ethics violations. The outrage was enough to push the effort from idea to practice. [Continue reading…]