Now Is the Time for Supreme Court Ethics

When will it be enough?

Dark photo of a Supreme Court decision with a small glow
The decision in Dobbs v. Jackson Women's Health Organzation signals that our system of checks and balances has broken down and that our democracy is in peril. Austen Risolvato/Rewire News Group

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The impact of the Supreme Court’s decision almost a year ago to strip the American people of the constitutional right to abortion has been swift and devastating for pregnant people in this country.

In Dobbs v. Jackson Women’s Health Organization, the Court overturned Roe v. Wade and, with it, decades of progress toward gender justice and a more equitable and robust democracy.

The Supreme Court is a deeply antidemocratic institution. By overturning a 50-year precedent and, for the first time in our nation’s history, using the Constitution to constrict fundamental individual rights, the Court openly disregarded the will of a commanding and consistent majority of Americans: Poll after poll after poll shows that Americans have overwhelmingly supported abortion rights for decades. And the aftermath of the striking down Roe has proven that people are ready to express that support at the ballot box.

Still it’s no surprise that a majority of the justices would do precisely what most Americans desperately wanted them not to do. The six-justice conservative supermajority is a product of both the antidemocratic forces that are baked into our Constitution (namely, the Senate and the electoral college) and a decades-long, scorched-earth, win-at-all-costs campaign by former Senate Majority Leader Mitch McConnell and the rest of the Republican Party.

As a result, we now have a Supreme Court where a majority of the justices were nominated by presidents who initially lost the popular vote and confirmed by a group of senators who represent a minority of the U.S. population.

A much larger conservative legal project

The conservative justices knew the assignment when they took the bench. They understood why the conservative legal movement had poured millions into their confirmations, and why the GOP has largely foregone a legislative agenda in favor of a singular focus on the judiciary.

The conservative legal project is much larger than simply overturning Roe, but overturning it has always been the centerpiece. In Dobbs, these justices who owed their positions to a virulently anti-abortion network of benefactors and an equally anti-abortion political party delivered on that decades-long promise.

Judges are supposed to be impartial arbiters of the law. But the conservative supermajority of the Supreme Court, apparently having tasted success and the glory that comes with it, are now acting more like kings than judges. Supreme Court justices are the only judges in the country who are not bound by a code of conduct, but the brazenness with which they flaunt their impunity has reached a fever pitch.

Take Justice Clarence Thomas, for example. Thomas is again the subject of an ethics scandal, but the scope of it is like nothing we’ve seen before. For decades, Thomas has been traveling on the dime of Republican mega donor Harlan Crow, accepting gifts and lavish vacations that amount to millions of dollars. Crow also owns the house that Thomas’ mother lives in and paid nearly $150,000—if not more—in private tuition for Thomas’ great-nephew. Thomas’ failure to to disclose the gifts as required by federal law is grossly unethical and, in all likelihood, illegal.

Meanwhile, Justice Neil Gorsuch is the subject of a separate ethics scandal: A piece of property he co-owned in Colorado, which had been on the market for nearly two years, was suddenly under contract just nine days after his confirmation to the Supreme Court. Gorsuch took pains to disclose the sale on mandatory financial forms, but did not disclose the name of the buyer. That buyer? Chief executive of Greenberg Traurig, one of the nation’s biggest law firms with a robust practice before the Court (22 cases at last count.)

And not to be outdone, Justice Samuel Alito flew to Rome last summer for another wildly political speech to the Notre Dame Law School’s Religious Liberty Initiative in which he mocked the international leaders who had criticized the Dobbs decision that he penned. (Don’t forget reports claim he leaked the Hobby Lobby decision.)

After all of this, Chief Justice Roberts, who himself is embroiled in a potential ethics scandal involving his wife’s income, refused to testify before the Senate Judiciary Committee about the deepening ethical quagmire on the Court. In response to a letter from committee chair Sen. Dick Durbin, Roberts stated he was “respectfully” declining the invitation to testify “in light of separation of powers concerns and the importance of preserving judicial independence.” What Roberts failed to acknowledge is that our system of separation of powers was intentionally paired with an intricate system of checks and balances to ensure that no single branch becomes too powerful.

A tipping point for democracy

This Court is drunk on its own power. It is untenable that the judicial branch can strike down acts of the legislative and executive branches, but that those branches can exercise no check over the judicial branch.

There has never been a more urgent need for the other two branches to exert their authority and responsibility to hold the third in check. Overturning Roe was an inflection point; the Supreme Court stopped acting as a co-equal branch of government and began acting as an authority unto itself. The Dobbs decision signals that our system of checks and balances has broken down and that our democracy is in peril.

Abortion is essential to a robust democracy. The constitutional right to bodily autonomy and to personal privacy, including the right to an abortion, is integral to the health and sustainability of a multicultural, pluralistic society. When half the population lacks the ability to make the most critical decisions about their bodies, lives, and futures, they are excluded from participating equally and fully in democracy. And so, stripping away this constitutional right is a devastating blow to the health of our democracy.

There is enormous overlap between the efforts to restrict abortion in this country and the efforts to restrict the right to vote. Both efforts rely heavily on the use of mis- and disinformation to narrow the ability of marginalized groups, including women, LGBTQ+ people, low-income people, Indigenous people, and people of color, to actively participate in our democracy. The effect of these efforts is to further concentrate power in the hands of a few wealthy white men. This explains why the states that have passed the most abortion restrictions are many of the same states that have passed the most voting restrictions. It’s also why the same organizations that fund one of the efforts often fund the other.

The relationship between abortion rights and democracy is particularly evident in this moment where democracy is under threat globally. Brazil, Poland, Hungary, and the United States all serve as examples of established democracies in which the past decade has brought both significant democratic backsliding and an erosion of reproductive rights. It is no coincidence, therefore, that a slew of well-known figures in the anti-abortion movement participated in the January 6, 2021 insurrection, the most direct threat to our democracy since the Civil War.

Reproductive rights are “inextricably linked to democratic institutions, with threats to one reinforcing threats to the other,” as Hanna Kozlowska wrote in Foreign Policy. The weakening of our democracy is both a cause and effect of the overturning of abortion rights in Dobbs v. Jackson Women’s Health Organization. As our country lurches toward authoritarianism and white Christian nationalism, Dobbs is an enormous setback to both the fight for reproductive and abortion justice and to the strength of our democracy.