Jonathan P. Baird lives in Wilmot.

As a court watcher, I have long thought the U.S. Supreme Court has escaped the type of critical scrutiny it deserves. Most media coverage focuses on wins and losses without going too under the surface. But maybe that has begun to change.

2022 turned out to be the Court’s perfect storm. The Dobbs decision destroying abortion rights played a key role because of its massive unpopularity but other darker dimensions were also at play.

The Supreme Court has no written code of ethics. This glaring weakness has been repeatedly on display. The spectacle of Justice Clarence Thomas and his wife Ginni is exhibit A. Justice Thomas has refused to recuse himself from January 6-related cases. At first, he said he had no knowledge of his wife’s insurrectionary activities. Thomas ruled on quite a few January 6 cases. He was the sole dissenter in an unsigned opinion in January that required the Trump administration to release documents related to the attack on the Capitol to a congressional committee. He also dissented in Texas and Pennsylvania's challenges to election results.

More recently, he participated in Moore v Harper, the North Carolina case that raises the independent state legislative theory argued by John Eastman, Jeffrey Clark and other Trump lawyers. However preposterous the idea that Thomas was unaware of his wife’s activities, that assertion is no longer operative. All of America knew about her texts to Mark Meadows as well as her calling state legislative officials to try and change the outcome of the 2020 presidential election.

Yet, Thomas refuses to recuse in Moore v Harper even though the appearance of impropriety could not be more blatant and in your face. Unlike the Dobbs leak, Chief Justice Roberts conducted no investigation into the factual accuracy of whether Justice Thomas had knowledge of his wife’s political activities. Roberts certainly could have investigated but he gave Thomas a pass.

Hofstra Law School Professor James Sample commented, “Never in a zillion years did I imagine a scenario where a Supreme Court justice would be ruling in a situation that could shield his or her spouse from criminal liability. And the particular crime here isn’t your minor offense - not shoplifting or jaywalking. It’s potentially a conspiracy to overturn an election for the first time in American history.”

Supposedly Supreme Court justices are self-policing. They each decide for themselves the propriety of their own ethics violations. Written codes of conduct only govern judges in the lower federal district courts and the federal appeals courts. The Thomas debacle was complemented by the story of the former anti-abortion leader, Rev. Rob Schenck, who claimed he was told the outcome of the 2014 Hobby Lobby case weeks before it was announced publicly. The New York Times reported this story. Rev. Schenck broke with the religious right in 2018.

Rev. Schenck founded the Christian evangelical organization Faith and Action (later Faith and Liberty) in 1995. They set up their headquarters across the street from the Supreme Court. Rev. Schenck ran a covert operation called Operation Higher Court. He recruited right-wing Christian millionaires to try and influence the Court. Over the years, he arranged for about 20 couples to fly to Washington D.C. to wine and dine justices.

The millionaires used generous gifts to the Supreme Court Historical Society, private dinners and vacations as their vehicles for access to the justices. Schenck described much success in connecting with Justices Thomas, Alito and the now-deceased Scalia. The three justices were in close touch with Donald and Gayle Wright, real estate millionaires who made big contributions to the Supreme Court Historical Society.

Steve Green, the president of Hobby Lobby, attended the Court’s holiday party in 2011. He was later a lead plaintiff in the Burwell v Hobby Lobby Stores case. Schenck told the Times he received advance word of the result on June 4, 2014, and his personal emails support that. The opinion was released on June 30 with Justice Alito’s sympathy for the Green family’s religious convictions shining through. Alito has since denied providing any advance notice of the Hobby Lobby decision.

Rev. Schenck’s agents gained special seats at oral arguments, participated in prayer sessions at the Court, and had private dinners with justices. Schenck describes rehearsing lines with the agents to make the judges feel more comfortable. They used prayer sessions with the most conservative justices in the judges’ chambers as a way to build rapport. Some of the “prayers” filed amicus briefs in cases being litigated before the Court.

There is a big “personal hospitality” exemption in Supreme Court gift reporting. It has given the justices a way around reporting the luxuries they have received. Before he died in 2016, over a period of many years, Justice Scalia took 80 expensive hunting vacations where he seldom paid. He was often accompanied by Republican Party officials and individuals with interests before the Court. These trips were not reported under Supreme Court disclosure rules.

In his new book, The Scheme, Sen. Sheldon Whitehouse (D.-R.I.) details the way it has worked. He wrote, “...big donors could go to the owners of the fanciest resorts in the world - private islands in the Caribbean, charter yachts in the Med, ski chalets in the Rockies - and ask the owner to invite a friendly justice and give him a wonderful free undisclosed vacation.”

The donors picked up the tab. They also arranged for the justice to give a speech before an audience of his admirers like the local Federalist Society chapter. The speech could typically cover any transportation costs.

Sen. Whitehouse says that before he rewrote the Second Amendment in the case of District of Columbia v Heller, Justice Scalia was entertained at the most luxurious hunting resorts in the company of senior NRA leaders and wealthy conservative donors, including those who funded briefs in the Heller case.

The ethics issues are only one aspect of what has gone wrong with the Court. Sen. Whitehouse says the Court has been captured. He says it is captured in the same way Railroad Commissions in the 19th century were captured by railroad barons. The Court’s overwhelmingly consistent record of siding with big corporations and against workers is powerful evidence of that proposition.

Our Supreme Court is the best court dark money could engineer and buy. Never before have judicial selections been turned over to a partisan private organization like the Federalist Society. Special interests have spent more than a half billion dollars to get control over the Supreme Court.

Earlier this year, Sen. Whitehouse and Congressman Hank Johnson (D.-Ga.) introduced the Supreme Court Ethics, Recusal and Transparency Act. The bill would enact stronger recusal standards, would require the Court to adopt a binding code of conduct and it would mandate that the Court adopt tougher rules about disclosure of gifts and travel paid for by outside parties. It would require disclosure of the identity of funders of amicus briefs and it would block amicus filers from making gifts or providing travel to federal court of appeals judges or Supreme Court justices.

It should be clear by now that the lack of any written code of ethics for the Supreme Court is a huge embarrassment for that institution. Lawyers and judges are about process and procedure. Whatever Chief Justice Roberts might say, there is now no process for even filing an ethics complaint. Fundamental accountability is at stake. Every day that goes by with no written code of ethics is a dagger blow to the public’s confidence in the judiciary.

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