The Journal Gazette
Thursday, May 12, 2022 1:00 am

Hollow justice

Leaked draft latest reflection of Supreme Court's waning integrity

Marty Lemert

Contempt of court: These are three words no attorney ever wants attached to him or her.

Yet today it is the U.S. Supreme Court that should fear these words. For the court's popularity with the American people has plummeted.

A recent Pew Research Center poll showed that the American public's approval of the court had dropped to 54%, down 15% in just the past three years. The poll was conducted in mid-January – before Justice Stephen Breyer announced his retirement; before it was revealed that Justice Clarence Thomas' wife Ginni texted the White House chief of staff about overturning the 2020 presidential election; before Justice Thomas failed to recuse himself from a case deciding whether the Jan. 6 committee could receive White House records that might implicate his wife; and before a draft ruling overturning Roe v. Wade was leaked to the media.

We like to think there are no kings or princes in America. But we are witnessing an entire royal court that is above the laws the rest of us must follow.

The Supreme Court has no judicial code of ethics to which it is bound. These nine justices are unelected, anointed to hold lifetime positions of supreme power over the lives of millions of people, and they cannot – absent the impeachment process – be removed.

Chief Justice John Roberts has been asked repeatedly (most recently by Congress after the Ginni Thomas revelations) to no avail to institute a judicial code of ethics similar to the codes by which all other federal judges are bound. 

Instead, Roberts just announced he would jump to investigate the leak of the draft. But why should a law clerk who may have leaked the draft be held accountable when Roberts refuses to hold himself and his fellow justices accountable to any code of ethics?

Roberts' lack of a judicial ethics code has allowed Thomas to refuse to recuse himself from Jan. 6 cases, allows justices to accept gratuities and trips from anyone who might want to influence the court, and allows the court to increasingly use a shadow docket (or shall we call it “back-alley jurisprudence”) to issue rulings without oral argument or written opinions to guide the American public, as it recently did in Louisiana v. American Rivers.

Of course, we know from the leaked Roe draft that the interests of the American public are of no concern to today's Supreme Court. As Justice Samuel Alito stated in the draft: “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public's reaction to our work.”

So be it. But stop expressing shock and dismay when the public who pays your salaries holds you in contempt for your contempt of it. We the people formed this government, and we the people ultimately can and will change it.

Marty Lemert is an attorney in Fort Wayne.

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