Under scrutiny, the Supreme Court should embrace transparency

Rising concerns about the U.S. Supreme Court’s lack of impartiality amid increasing calls for judicial recusals, reforms, and transparency, form a historical backdrop of anxiety as Americans are, once more, bracing themselves for a landmark ruling that will have a direct bearing on the future of our constitutional democracy, the Bill of Rights, and the rule of law. In this case, Trump v. United States, the question is whether the president enjoys absolute immunity from criminal prosecution. The Court will render a decision that may determine, as former President Donald Trump asserts, that the nation’s chief executive should possess constitutional authority to order the assassination of his political opponents. The citizenry’s anticipation of this historic decision, expected any hour in the final days of the Court’s term, has generated nationwide demands for transparency in the work of the High Bench at a juncture when public respect for governmental institutions, including the Court itself, is in sharp decline.

This is not the first time that the nation has anxiously held its breath while awaiting the Court’s seminal rulings on matters that could re- shape our legal landscape and the future of the country. With Brown v. Bd. of Education (1954), Americans understood that a decision banning segregation in public schools would shake southern culture to its core and open avenues for racial equality promised by the 14th Amendment. In the Pentagon Papers Case (1971), everyone knew that the future of freedom of the press and the status of the First Amendment were at stake. In Roe v. Wade (1973) and Dobbs v. Jackson Women’s Health Organization (2022), the fundamental question of a woman’s right to govern her own reproductive organs was in the hands of nine justices.

The public’s heightened anxiety about judicial decisions that might displace the pillars of our nation can be allayed, to some degree, if there is among the citizenry, a respectable level of confidence in the work of the Court — that it is above the fray and not a tool of political bias, and that its opinions are grounded in facts and law and are well-reasoned and defensible.

Public confidence in the Court can be bolstered through transparency. While the Justices do most of their work behind the scenes—in chambers and judicial conference—the reputations of the individual Justices and hence the institution are well-served if citizens believe that rulings are not the product of judicial bias. Wise judges will recuse themselves from cases if there is even the “appearance” of bias. As Justice Felix Frankfurter wrote, “justice must satisfy the appearance of justice.”

In this current climate two Justices, Clarence Thomas and Samuel Alito, are laboring—fairly or unfairly—under suspicions that their votes and perhaps opinions in the presidential immunity case promoted by Trump will be partisan. Thomas and Alito have rejected calls for their recusal and the fraught politics of the issue has ensnared the Court in a storm of controversy and doubt at a time when its reputation can least afford it.

As with most governmental problems, the remedy for institutional damage to the Court is transparency, with the focus on judicial recusal, to borrow from the federal code—28 U.S.C. Section 455—whenever a judge’s impartiality “might reasonably be questioned.” The Justices themselves can shoulder the responsibility for asking colleagues to withdraw if they refuse to recognize the basis for public perception of bias. Additional measures seem necessary to remove from the Justices themselves the sole responsibility for deciding when recusal is the right call.

Sen. Sheldon Whitehouse’s proposal, the “Supreme Court Ethics, Recusal and Transparency Act of 2023,” which has been approved by the Senate Judiciary Committee, would require the Justices to adopt a code of conduct, create a mechanism to investigate alleged violations of the code, improve disclosure and transparency expectations, and require Justices to publicly explain their recusal decisions. At a time when public confidence in the Court has declined, we need a measure to restore its reputation. This bill is a good start. It promotes the nation’s commitment to the rule of law and confidence in the Court. The benefit of an explanation for a Justice’s refusal to withdraw from a case is transparency, precisely what the Court and the country need at this juncture in American history.

David Adler, Ph.D., is a noted author who lectures nationally and internationally on the Constitution, the Bill of Rights and Presidential power. Adler’s column is supported in part through a grant from Wyoming Humanities funded by the “Why it Matters: Civic and Electoral Participation” initiative, administered by the Federation of State Humanities Councils and funded by Andrew W. Mellon Foundation. Adler can be reached at david.adler@alturasinstitute.com.