Who will keep the Supreme Court accountable if it won’t police itself? 

Controversy over Justice Samuel Alito flying the American flag upside down — Donald Trump “Stop the Steal” Campaign — A few days after the incident January 6th^Number Attack on the Capitol It would be outrageous if this was just another example of Supreme Court misconduct, ignoring rules designed to ensure that judges decide cases fairly and impartially.

True impartiality is, of course, very important to litigants before a court of law. But ensuring the appearance of impartiality is even more important.

The Supreme Court is a college of cardinals, the highest priesthood of American democracy. And like any priesthood, its authority is entirely moral. If the Supreme Court loses its authority and its decisions begin to be perceived as merely political, it will no longer be subject to unconditional deference and will lose its ability to resolve controversial cases.

That is why the allegations against Justices Alito and Clarence Thomas are so disturbing. accept Free Winnebago and Luxury Travel It doesn’t actually affect the interpretation of some confusing federal law, but that’s not the point.

To serve as the ultimate backstop for the rule of law, a Supreme Court justice must be above suspicion, like “Caesar’s wife.” But in a bizarre reversal of the proverb, Alito and Thomas are trying to scapegoat their own responsibility at the expense of their wives. Blame the wifeMartha Ann was accused of displaying a “Stop the Steal” symbol in front of her home, while Ginnie Thomas was so deeply involved in the effort to overturn the results of the 2020 election that she ended up testifying before the committee on January 6th.

The issue here is not that the spouses of Supreme Court justices are not free to live their own lives. It is that no one has the right to sit on the Supreme Court or to rule on a particular case. To maintain the authority of the Supreme Court, justices must be pillars of justice. Sometimes, they will sacrifice for their team and recuse themselves even if they do not feel it is strictly necessary. Justice Thomas may not truly be swayed by Ginny Thomas’ political opinions. But it is important to note that his wife is actively involved in the matter. Lobbying When you see her as President Trump’s Chief of Staff making statements like, “Unleash the Kraken and save us from the left who are trying to destroy America,” it’s no wonder people are asking themselves if she’s lobbying you as well.

of Laws and Regulations This law, which applies to federal judges and (despite what they would like to believe) Supreme Court justices, provides, in part, that “a judge shall disqualify himself in any proceeding in which his impartiality may reasonably be called into question.” The issue here is not whether a judge is actually impartial or whether he is influenced by it. The issue is whether anyone reasonably believes that a judge may be impartial.

The larger problem here, and one that goes far beyond the high-profile January 6-related cases, is that the Supreme Court has placed too much emphasis on collegiality and little on accountability. Lower court judges must adhere to statutory standards for challenge set by higher courts, but at the Supreme Court, all judges decide challenges for themselves, and there is no review.

There are several proposals to strengthen ethics in the courts. One of them is: Office of the Inspector General Federal court reform gives the inspector general the mandate to investigate misconduct in both the Supreme Court and lower courts. This provides some accountability, but it could also create more problems than it solves, since the inspector general would be investigating potential issues long after the fact. A scathing inspector general report about a justice’s failure to resign from a 5-4 case is unlikely to boost the court’s reputation.

A more limited possibility would be to institute a process whereby the Supreme Court as a whole could vote on whether to opt out of individual justices from particular cases. This would have the advantage of applying a form of accountability that is already holding both district and appellate courts accountable. It would also address the problem while it can be fixed. Finally, and perhaps most importantly, making the opt-outs transparent would increase public confidence in the courts.

Again, this is not a question of whether a judge is actually biased, and there is no shame in recusing oneself, but simply a recognition that a judge’s cooperation in deciding a particular case may diminish rather than enhance the authority of the court.

This is not a theoretical concern: if Donald Trump avoids a federal trial on the January 6 charges by a 5-4 vote because both Justices Alito and Thomas recuse themselves, everyone on the left and right will be convinced that fraud was committed. Trump supporters will be pleased, his opponents will be infuriated, but on both sides the Supreme Court’s reputation will have taken a hit from which it may never recover.

No one wants that. The alternative to an impartial and responsible Supreme Court is chaos, dysfunction, and ultimately radical reform. Hopefully the Supreme Court will decide to purge its own powers, but if it doesn’t, Congress should.

Chris Trucks He is a founding member of the Rule of Law Association and an appellate lawyer.