Justice Alito’s Flag Controversy Brings Scrutiny to Supreme Court Ethics

HARI SREENIVASAN: Christiane, thanks. Professor Aaron Tang, thanks so much for joining us. Recently, the New York Times had reported a story about flag being flown outside Justice Alito’s house. And it was an upside down flag, which is a symbol for a lot of people who support the Stop the Steal Movement, people who were supporters of President Donald Trump. The Justice said, you know what, He didn’t really have anything to do with it, that his wife was the one who flew the flag. And it was part of kind of a, a, a neighborly dispute because of people that were expressing political viewpoints, et cetera. You know, when you saw this story, were you surprised by it?

AARON TANG: Yes, I think so. And that’s saying something because you know, the recent constant flow of stories about Supreme Court justices and ethical lapses, you might have thought this was a point at which almost nothing could surprise you anymore. But it’s really, truly remarkable that a justice, a Supreme Court justice who’s being asked to make decisions about liability for crimes that were alleged to have occurred arising from Donald Trump’s effort to subvert the lawful results of the 2020 election. It’s remarkable that a justice in that position would have in front of his home a visible symbol indicating that he believes in fact that the election was stolen or that somebody in the house does despite all the evidence the contrary.

SREENIVASAN: You know, just a, a couple of weeks ago, there was the awarding of the Pulitzer Prizes and ProPublica, fantastic investigative news organization is really you know, supercharged the national conversation about the role of ethics and members of the Supreme Court. They had done so many reports on the, the, you know, whether or not Supreme Court justices were reporting gifts and travel that were given to them by you know, ideologically one side or another. And it, and they were really focusing on Justice Clarence Thomas and Justice Alito. And I, you know, why has that reporting and that’s been going on for a couple of years now. why are those reports troubling?

TANG: Sure. So federal law – the, there’s a federal recusal statute that requires any federal judge or Supreme Court justice to recuse themselves in any case in which their impartiality might reasonably be questioned. And so what you have happening when Justice Thomas receives millions of dollars worth of gifts from Republican mega donors like Harlan Crow, justice Samuel Alito, receiving wealthy, lavish personal jet flights and vacations from Republican donor, Singer, and then to them turning around and voting in cases in which, in Mr. Singer’s case, his own hedge fund, won a case worth hundreds of millions of dollars that Justice Alito voted in. Justice Thomas, of course, voting in, consistently in conservative fashion on a host of cases one starts to wonder whether the Supreme Court justices truly are impartial when they’re accepting such remarkable personal gifts in seeming exchange for votes on key cases.

SREENIVASAN: Yeah. Let’s talk a little bit about that impartiality. I mean, look, I, I grew up and I’m old enough to have the equivalent of civic classes when I was growing up, right? But they, that there was this notion of lady justice blindfolded with the sword and the scales and being truly impartial.

TANG: So I think that’s exactly the right question to be asking, and I think this is a situation where two things can be true. The first is that Supreme Court justices ever since the very first one, the first, the best Chief Justice in, you know, most famous chief Justice in Supreme Court history, John Marshall in the 18th century, they have all been human beings all susceptible like you or I to motivated reasoning, partisanship bias. Right? So it’s true, that’s – we’ll never have perfect angels for Supreme Court justices who can set aside all of their personal beliefs and affiliations. That’s true. But it can also be true that the Supreme Court justices we have can try, can believe that it’s important to maintain an appearance of impartiality, of neutrality, can try to decide cases to the best of their ability by setting aside their mo, their partisanship and their motivation. And what is really different about the current Supreme Court is that at least some of those justices, the justices we’ve been talking about no longer seem as though they’re trying no longer feel as though they have to earn the public’s trust through their even-handed actions. But instead believe that in virtue of being a Supreme Court justice, they are entitled to unyielding deference from the American people. And that is what I think is most troubling about this recent spate of news.

SREENIVASAN: What can the court do about it?

TANG: This is the real trouble, the, when a lower court judge, a federal district court judge, or court of appeals judge fails to recuse themselves when their impartiality might be reasonably questioned or fails to report a gift. There’s a mechanism in place for enforcement. The judicial conference. The other federal judges can come and sit in judgment and require a judge to recuse that judge can be replaced by another district court judge or a court of appeals judge. But what happens when you have a Supreme Court Justice allegedly violating these same provisions is there’s no enforcement mechanism because the lower court judges are not going to sit in judgment of the Supreme Court justices. The Supreme Court justices are not going to sit in judgment of one another and might not want them to, given the partisan makeup of that court. The accountability might swing in one direction only, you might worry. And so the only real enforcement mechanism in, in the Constitution is impeachment. Right. So a justice can be impeached for really problematic behavior or a high crime or misdemeanor. And as we’ve seen with the Donald Trump impeachments, right in this political moment, it is virtually impossible to imagine two thirds of senators getting together to vote to convict a justice even for seemingly obviously wrongful behavior.

SREENIVASAN: Does Justice Roberts have any extra power being the chief justice?

TANG: I think there is a bit of a public misperception that in virtue of Justice Roberts being the Chief Justice that he might have some official authority to reprimand, punish, even remove one of his colleagues, an associate justice. But that is not the case, right? The chief Justice of the United States is truly first among equals He has informal, sort of cultural authority and I think the chief justice to his credit, has really done his best to stay out of the public limelight, to lead by example but that unfortunately has not been enough to bring back into the fold some of the outlier behavior by his colleagues.

SREENIVASAN: Wasn’t it just last year that the Supreme Court finally adopted a code of ethics? I mean, ethics that technically applied to all sorts of other judges across the land, but not to them.

TANG: That’s right. So after much public color blue, and frankly, in response to ProPublica’s remarkable reporting in November of 2023, the Supreme Court formally announced that the judicial code of conduct that was binding on all lower court judges would, with some tweaks, also be binding on it. But the tweaks are the key part, right? Yeah. One big problem is there’s no enforcement mechanism for if a Supreme Court Justice violates the code of conduct, and the other is the Supreme Court Code of Conduct identified a competing consideration that makes it even less likely the Supreme Court Justices will recuse, as you might think, ought to be the case with Justice Thomas or Alito, given their involvement with potential January 6th cases. The Supreme Court Code of Conduct recognizes that justices have a duty to sit since they cannot be replaced by other judges in the same way that a lower court judge is. That makes it I think more likely that Justices will continue to hear cases that we might think their impartiality is questionable.

SREENIVASAN: And how much of that is in the context of the other branches of government and what they’re able to do about the Supreme Court? I mean, technically Congress has a check on the Supreme Court’s power, doesn’t it?

TANG: Absolutely. Congress can make exceptions from and regulate the court’s power to hear certain kinds of cases. It can obviously control the purse strings and choose to fund or not fund the Supreme Court. It could impose term limits if it so desired. There are ways to change obviously the size of the Supreme Supreme Court, which has happened routinely over time. So there’s no question that the Constitution affords Congress, a co-equal branch ample power to check what this current Supreme Court is doing. And so the problem is Congress’s lack of political will, it’s inability to use that power in any meaningful way in the ways that the American people might wish.

SREENIVASAN: So in the context of the actions by Justice Alito or his wife in this case, or Clarence Thomas and his wife, Gini Thomas, who has been implicated in some of the January 6th texts back and forth from her phone to Mark Meadows talking about, you know, really that the, the, this siding agreeing that Joe Biden perhaps did not win the, the presidency legitimately, and that that this is all being hijacked. Right. given in with that in the background, w what’s in front of the Supreme Court today about former President Trump’s role in January 6th. I mean, those arguments have been heard, right?

TANG: Yes. In a sort of indirect kind of way, but yes, the Supreme Court is currently considering and will soon issue a decision in the next month on the question whether President Trump enjoys immunity, which is to say he cannot be prosecuted at all for, from criminal liability arising out of his efforts to defraud the American people and subvert the lawful election results in 2020. He has been charged with a federal indictment in the District Court of District Columbia by Jack Smith, right. Special Prosecutor. That case was supposed to proceed to trial in March, but it has been delayed ever since then, as the former president has been taking up this question about immunity from prosecution up to the court. Now, it’s before the justices, two of them will be voting on this case, despite their own either personal involvement or familial involvement in some of the underlying conduct that gave rise to the charges.

SREENIVASAN: Is this a problem more with the conservative side of the court than the liberal side?

TANG: So I think we can differentiate between two different kinds of problems, right? Some people might be worried about the problem of partisanship in general, the idea that a Supreme Court justice might vote more reliably and predictably in support of causes favored by the President, the par political party of the President that appointed them. That, to the extent it’s a problem, is a problem that has always existed at the Supreme Court, and is equally applicable to Democrat and Republican appointed justices. Right. Democrat appointed justices are partisan too. The second question, though, about ethics concerns the extent to which justices seem to be abusing their positions of authority in exchange for personal favors, personal jet flights, vacations, or seem to be evincing questionable decision making with respect to public statements about their views on potential cases before the Supreme Court. That does seem to be an issue on which conservative justices in particular, Justice Alito and Thomas, have cornered the market, so to speak. Now, again, they’re not alone, right. Justice Ginsburg famously criticized candidate Trump before the 2016 election, which was a bad mistake. She did apologize and own that mistake, which is, I think, different from, for example, Justice Alito blaming his wife Martha Ann, rather than saying this was a mistake, we shouldn’t have done it. But the partisanship problem, equally applicable to both sides.

SREENIVASAN: You know, when you look at that partisanship problem, and we should clarify for audience, you clerk for Supreme Court Justice Sonya Sotomayor before she was that. Right. and I mean, there are these kind of measures of partisanship and people point to Justice Sotomayor and say, well, look, she’s farther to the left politically than some of the conservative justices are to the right. Right. Is that still kind of tip to scales? ’cause It’s still one justice, one vote when it comes to what happens in that deliberation room?

TANG: Yeah, I, I think, you know efforts by political scientists to quantify how far to the right or how far to the left individual justices are, those are very difficult measures to make. It is certainly true that all three Democrat appointed justices, including Justice n, my former boss, Justice Kagan, and now Justice Jackson, are to the left of the median and the six conservative justices are to the right. Just how far is a matter of sub debate? But I think we can accept that we will have justices who, as you mentioned earlier, are human beings and will therefore be likely to vote in one direction or another in line of their personal views, the presidents who appoint them but also believe that we can have a functioning Supreme Court in spite of that, if those justices have a good sense of morality about their role in American public life. Right? Partisan justices who are humble, who, who view the American people as the deciders, the great decision makers, and the, the tough political questions of the day, those are justices like, frankly, chief Justice Roberts, who can protect the legitimacy of the Supreme Court and serve the American people. Well, it’s only when you have partisan justices who are hyper confident overturning choices by the Democratic elected branches and inserting themselves in public life where it’s not necessary that we start to have a problem.

SREENIVASAN: One of the reasons we have you on for this conversation, professor t, is you wrote a book called “Supreme Hubris: how Overconfidence is Destroying the Court and How We can fix it.” So let’s talk a little bit about the, how we can fix it part, I mean, considering that by the time a case gets to the Supreme Court, it is a big deal, right? Because other courts have struggled with it, there’ve been flip-flop decisions in lower courts, but the very nature of what decisions a court decides to hear is in itself kind of that first well political act.

TANG: That’s right. Yes. And the Supreme Court ever since 1925, and especially since 1988, in a series of congressional statutes, has had remarkable ability to set its own agenda, right? The Supreme Court can refuse to hear and does refuse to hear 99% of the cases that get appealed to it, and can pick and choose what it wants to hear. And unsurprisingly, it’s, it’s much more fun if you’re a Supreme Court justice to pick and choose the cases that can reshape the American society in the way that you want. So in terms of how we can fix it, I think it has to start with the idea that our best chance to save the Supreme Court and restore its place in American society as a neutral and trusted arbiter is for the justices to moderate and come back to the middle themselves, right? Packing the court with six more liberal justices will lead to a tit for tat escalation with, and someday we’ll have 33 Supreme Court justices and <inaudible>, right? So that’s not a solution. There are other ways, other measures Congress can take to put pressure on some of the more institutionally minded conservative justices to bring back their votes, reign in, become centrist, moderate power brokers on a trusted Supreme court. That’s our best shot. And the book talks about some ways that we might try to bring that about.

SREENIVASAN: So what, what can Congress do?

TANG: So the number one thing Congress can and should do is to propose new laws, should the Democrats, for example, ever have enough votes to override the filibuster, that strip the Supreme Court of power over particular issues. So one important issue, for example, is voting rights. If Democrats were to be able to pass a new voting rights bill, protecting the right of people of color to vote they could include a provision in that law saying the Supreme Court shall not have power to strike down this law as unconstitutional. And in doing so, first, it would preserve the security of this very important kind of statute voting rights. But secondly, it would send a message to the conservative justices on the Supreme Court, if they keep moving the law to the right aggressively as they have done, Congress is going to start passing laws, taking the court’s power away to decide important cases.

It might be voting rights first, it might be abortion. Second, it might be environmental law, immigration law, third and fourth. And that will force the conservative justices to think, well, maybe we should reign in our votes and, and become more moderate in exchange for this power. So Congress won’t feel the need to do this. And in doing so, we could replicate frankly, the American experience from 1936 to 1937, when Congress did the same thing, threatened to put pressure on a conservative Supreme Court that had gone awry, and two of the conservative justices actually switched their votes, became much more humble and moderate and preserve the integrity of the Supreme Court as we knew it.

SREENIVASAN: Professor Aaron Tang of UC Davis. Thanks so much for your time today.

TANG: Thank you, Hari.