The New York Times broke a story two days ago revealing that Samuel Alito leaked a 2014 Supreme Court contraception decision, weeks before it was publicly announced, to anti-abortion activists. The story also details the extraordinary access these activists have to other justices as well – at restraurants, hunting retreats, and even prayer sessions in their chambers. These revelations come on the heels of not only the leaked Dobbs decision last spring, but the role of Clarence Thomas’s wife Ginni in the attempt to overturn the 2020 election in favor of Donald Trump.
Supreme Court justices are bound by no written ethics code, only their own sense of propriety. Democratic lawmakers are now calling for binding ethics rules and transparency. But we have here is not an ethics breach so much as a profound crisis for democracy. To begin with, the actions of Supreme Court justices cannot be regulated by the other branches since there can be no legal enforcement of ethics rules for the highest legal body. Strategically Democrats should be calling into question the overweening power of the Court itself.
This news about access, lobbying, and leaks should be used to further delegitimate an already discredited institution in the eyes of the American public. One of the only avenues available to push back against the Court’s inherently anti-democratic authority, and against its increasingly authoritarian and far-right agenda rests with public opinion. A Court under severe scrutiny and criticism for both its partisan leanings and influence by lobbyists is more easily circumscribed by Congress, by administrative agencies, and by states in terms of the scope of its authority. SCOTUS did not have the power it enjoys today at earlier points in US history, and need not in the future.
Distressing questions of democratic backsliding in the United States have rightly been focused on GOP politicians and far-right social movements. But the largest threat we may face is many decades of right-wing autocracy from the bench.
