Election Day

By Thomas Lamia

As I write, the Crystal Ball image of life in the United States is a swirling tempest. The essence of where we go from here is a puzzle of possibilities, all are of the greatest importance and yet none are clear in either their probability or consequences. An approaching election is the cause of uncertainty and anxiety. The results, and their acceptance, or not, are expected to be critical to the future of every American. Nothing I could say would do justice to the moment—so I will revert to one not so small slice of the totality of what is at stake: the Supreme Court of the United States.

SCOTUS, one of three branches of our constitutional form of government, is the only one not facing an election in a few days. That is by constitutional design. The Court’s membership and governance are expected to be above the hue and cry of electoral politics. In this election, however, it is a central figure as both a player and referee. A controversy affecting its internal governance has made it a player; Article III of the Constitution, vesting “[T]he judicial Power of the United States” in the Supreme Court, makes it the ultimate referee.

The terrible events that followed the 2020 presidential election continue to strangle the country. They are unresolved; widely expected to return to obstruct a peaceful presidential transition. The country is faced with constitutional and statutory deadlines that will very likely come to SCOTUS for resolution while a civil war waits in the wings. This unacceptable, yet credible possibility is made more chilling by the current level of ethical controversy at SCOTUS, which is mired by falling disapproval ratings. Several precedent breaking decisions (in voting, abortion, campaign finance, religious liberty and presidential immunity) and ethical issues have weakened the Court’s public esteem. Article III of the Constitution vests in SCOTUS, “the judicial Power of the United States”). Neither the president nor the Congress may infringe this constitutional mandate. Ethics reform to restore its trust and esteem must come from within. It is not likely to happen before January 6, 2025 when an election winner is to be certified or by January 20, 2025 when that winner is to be inaugurated.

Solomonic wisdom will be needed from SCOTUS to navigate a constitutional crisis over the election results and overcome partisan objections to a transfer of power.

The chief justice has the power to ally the Court behind a necessary unanimous decision, but that may not be enough. The public will not have a seat at the table. There is a black box effect. Our faith must rest on the character and skills of all nine justices.

The Ethical Problems:

Recusals are left to the decision of the individual justice. The bedrock principle here is that “no man can be a judge in his own case.” An actual or apparent conflict of interest requires recusal. That’s it. Enforcement of the principle is left to the judge’s conscience and character. Justices Alito and Thomas have been accused of not recusing themselves from cases in which the standard seems to require recusal. There is grumbling among Court watchers over these incidents. We should not expect criticism from within the Court over recusal decisions.

SCOTUS image. Popular approval of SCOTUS has declined from 70% in 2020 to 47% today. More telling is that the current 47% view is composed of 73% Republican voices and only 24% Democratic. In 2020 this was 75% Republican and 67% Democratic. A shared concern has given way to partisanship.

No enforceable ethics code. SCOTUS promulgated an Ethics Code for itself in 2023. It has detailed idealized conduct provisions but no enforceability mechanism. It is an honor code and does nothing to clarify conduct that is highly controversial, such as gifts received from persons actually or potentially interested in SCOTUS proceedings. Justices do submit annual reports of gifts received from private parties but they are retrospective and, like recusal decisions, subject to individual interpretation of what is required. Justice Alito has not disclosed hospitality received. The Ethics Code is an honor system that can be abused.

Isolation from review by Congress. Public disclosure of unreported financial travel and hospitality largesse received by Justice Thomas and publicly disclosed by investigative journalism is of interest to two Senate committees. Chief Justice Roberts was invited to appear before the Judiciary Committee to discuss these issues but declined the invitation.

Leaks of draft opinions. Justice Alito was the author of two draft majority opinions that leaked to the public before they were final. These were Hobby Lobby (contraceptives, Obamacare) and Dobbs (overruling Roe v. Wade). A whistleblower testified that Alito was the leaker in Hobby Lobby. Alito adamantly denied that he was the leaker in both. Chief Justice Roberts appointed the Supreme Court Marshal to investigate the Dobbs leak. Nothing came of this. Rather obviously, the matter should have been entrusted to an outside investigator with access to personnel and documents.

Political involvement. The current ethics rules attribute to the justices the actions of their spouses. Justice Alito’s wife is said (by Justice Alito) to “like flags.” He said she was responsible for the flying of an upside-down American flag at their principal residence and an “Appeal to Heaven” flag at their summer residence. These flags were carried as banners by the insurrectionists at the Capitol on January 6. Justice Thomas’ wife is the chief executive of a far-right lobbying firm. She has the ear of and is financed by Federalist Society leader Leonard Leo. On January 6, as the riots at the Capitol were taking place, she was texting President Trump’s Chief of Staff, Mark Meadows, offering advice on presidential action. Justice Thomas says that he and his wife do not discuss their day jobs at home so he does not report his wife’s political activities in his ethics reports and has not recused himself from January 6 cases.

With this background, should any of us be comfortable with SCOTUS stepping in to rule on which of the candidates is to be selected as the winner of the 2024 election? I am not.