How the US supreme court could be a key election issue: ‘They’ve grown too powerful’

Activists call for the passage of a binding code of ethics for Supreme Court justices in front of the supreme court in Washington DC on 30 October 2023. Photograph: Shawn Thew/EPA-EFE

“Look at me, look at me,” said Martha-Ann Alito. “I’m German, from Germany. My heritage is German. You come after me, I’m gonna give it back to you.”

It was a bizarre outburst from the wife of a justice on America’s highest court. Secretly recorded by a liberal activist, Martha-Ann Alito complained about a neighbour’s gay pride flag and expressed a desire to fly a Sacred Heart of Jesus flag in protest.

This, along with audio clips of Justice Samuel Alito himself and a stream of ethics violations, have deepened public concerns that the supreme court is playing by its own rules. The Democratic representative Jamie Raskin has described a “national clamour over this crisis of legitimacy” at the court.

A poll last month for the progressive advocacy organisation Stand Up America suggests that the supreme court will now play a crucial role in voters’ choices in the 2024 election. Nearly three in four voters said the selection and confirmation of justices will be an important consideration for them in voting for both president and senator in November.

Reed Galen, a co-founder of the Lincoln Project, a pro-democracy group, said: “The idea that these guys act as if they are kings ruling from above, to me, should absolutely be an issue. It was always Republicans who said we hate unelected judges legislating from the bench and we hate judicial activism. That’s all this stuff is.”

Public trust in the court is at an all-time low amid concerns over bias and corruption. Alito has rejected demands that he recuse himself from a case considering presidential immunity after flags similar to those carried by 6 January 2021 rioters flew over his homes in Virginia and New Jersey. Justice Clarence Thomas has ignored calls to step aside because of the role his wife, Ginni, played in supporting efforts to overturn Donald Trump’s loss to Joe Biden in 2020.

Ethical standards have been under scrutiny following revelations that some justices failed to report luxury trips, including on private jets, and property deals. Last week Thomas, who has come under criticism for failing to disclose gifts from the businessman and Republican donor Harlan Crow, revised his 2019 form to acknowledge he accepted “food and lodging” at a Bali hotel and at a California club.

These controversies have been compounded by historic and hugely divisive decisions. The fall of Roe v Wade, ending the nationwide right to abortion after half a century, was seen by many Democrats as a gamechanger in terms of people making a connection between the court and their everyday lives.

Even though debate among members of Congress would lead you to believe that court reform is a polarising issue, it really isn’t

Maggie Jo Buchanan, managing director of Demand Justice

There are further signs of the debate moving beyond the Washington bubble. Last week, the editorial board of the Chicago Sun-Times newspaper argued that, since the court’s own ethics code proved toothless, Congress should enact legislation that holds supreme court justices to higher ethical standards. The paper called for the local senator Dick Durbin of Illinois, who is chair of the Senate judiciary committee, to hold a hearing on the issue.

Maggie Jo Buchanan, managing director of the pressure group Demand Justice, said: “It’s important to keep in mind that, even though debate among members of Congress would lead you to believe that court reform is a polarising issue, it really isn’t. For years we have seen broad bipartisan support for basic supreme court reforms such as ethics.

“A broad bipartisan consensus exists that they’ve grown too powerful, that they have too much power over laws and regulations. That’s shared among nearly three-fourths of Americans, including 80% of independents, so the demand is there and this isn’t something where it’s Democrats versus Republicans in the sense of real people. The American people want change and want to check the judiciary.”

Congressional Democrats have introduced various bills including one to create an independent ethics office and internal investigations counsel within the supreme court. Broader progressive ideas include expanding the number of seats on the court or limiting the justices to 18-year terms rather than lifetime appointments.

But such efforts have been repeatedly thwarted by Republicans, who over decades impressed on their base the importance of the court, ultimately leading to a 6-3 conservative majority including three Trump appointees.

This week Senate Republicans blocked the ​​Supreme Court Ethics, Recusal, and Transparency Act, legislation that would require the court to adopt a binding code of conduct for all justices, establish procedures to investigate complaints of judicial misconduct and adopt rules to disclose gifts, travel and income received by them that are at least as rigorous as congressional disclosure rules.

In response, Christina Harvey, executive director of Stand Up America, said its “nearly 2 million members are fired up and ready to continue advocating for supreme court reform – in Congress and at the ballot box”.

But Galen of the Lincoln Project worries that Democrats lack the necessary aggression to capitalise on the issue. “[Senate majority leader Chuck] Schumer and Durbin are not change agents. They consider themselves institutionalists and they continue to call themselves that. They’re in a place where they can’t possibly conceive of something like that. Democrats are just afraid of their own shadow.”

That principle might apply to the US president himself. The 81-year-old, who served in the Senate for 36 years, is reluctant to call out justices by name or call for sweeping reforms of the court, although he is making its decision to end the constitutional right to abortion a centrepiece of his campaign.

Ed Fallone, an associate law professor at Marquette University Law School said: “I don’t know that Joe Biden is the politician to try and benefit from this issue. Biden has always presented himself as an institutionalist and more of a centrist than many segments of the Democratic party.

“There’s a real risk here for Biden because, if he does try to get political advantage from the public’s growing concern about the supreme court, it seems to conflict with his message that we should all respect the court system and the judicial system and the Trump prosecutions and the various legal problems of former Trump advisers. It seems difficult to reconcile telling the public to respect the judicial system with also embracing the idea that the very top of the system is flawed and needs reform.”

Fallone added: “You will see other Democrats seize on this issue and start to push it, in particular those who are are going to try to energise the left side of the base, maybe not necessarily for this election, but maybe anticipating Biden might lose and starting already to look ahead to the following election.”

Other argue that, competing for voter attention with the cost of living, immigration and other issues, the supreme court will ultimately fade into background noise.

Henry Olsen, a senior fellow at the Ethics and Public Policy Center thinktank in Washington DC, said: “The middle of the country, the independents and the swing voters do not care about the supreme court, and I don’t think any effort by Democrats or the media bringing up these things about Alito or Thomas is going to register or motivate those people. It motivates partisans. It doesn’t motivate swing voters on either side.”