WASHINGTON, D.C. – Supreme Court justices are highlighting their amicable relationships with each other, despite their apparent disagreements in published opinions. Justices Sonia Sotomayor and Amy Coney Barrett recently made joint appearances, emphasizing that their profound differences in constitutional law do not affect their daily interactions. Other justices, including Elena Kagan, Neil Gorsuch, and the retired Stephen Breyer, have also reassured the public that they can remain friends despite ideological disparities.
However, the question arises of why the justices’ personal relationships matter when their decisions impact the lives of millions of people. The camaraderie among the justices holds no consolation for parents mourning children lost to school shootings or women struggling with the consequences of restrictive reproductive rights. The justices’ declarations of mutual admiration may come across as self-indulgent gestures to many aggrieved Americans.
Beyond the performative collegiality, the justices’ unwavering support for each other’s ethical choices, even in cases of misconduct, is concerning. Their historic practice of allowing individual justices to decide on recusal issues, as outlined in the court’s Code of Conduct, raises questions about impartiality. Justice Clarence Thomas’s controversial involvement in cases related to the January 6, 2021, Capitol insurrection, despite his wife’s known participation in attempts to subvert the 2020 election, is a clear example of this issue.
Although one may argue that the justices’ amicable relationships contribute to open dialogue and potential unanimity, the misconduct and lack of recusal in cases involving personal connections undermine the court’s credibility. The inclusion of hands-off provisions in the court’s Code of Conduct enables conflicted justices to make critical decisions that may significantly impact the outcomes of important cases.
The Supreme Court’s dilution of conflict of interest provisions in its Code of Conduct, specifically with the introduction of the “rule of necessity,” further complicates matters. This rule allows a justice to participate in a case despite a conflict of interest if they believe their involvement is indispensable to resolving an important issue. Consequently, conflicted justices are more likely to sit on crucial cases and potentially cast the deciding vote, as witnessed in Trump’s pending immunity appeal.
In conclusion, while performing cordiality and maintaining friendships may have some benefits, they should never come at the expense of impartial justice. The Supreme Court’s failure to address flagrant misconduct and the lack of recusal demonstrate the need for greater accountability. The American public deserves a judiciary that upholds the highest standards of integrity and impartiality.
[Steven Lubet is the Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law]
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