Bloomberg Law
Aug. 17, 2022, 8:00 AM

Supreme Court Justices Should Say Sorry Too

Gabe Roth
Gabe Roth
Fix the Court

As President Donald Trump was exercising his pardon power in the waning days of his administration, a federal judge told a reporter, “It’s not surprising that a criminal like Trump pardons other criminals. […] Apparently, to get a pardon, one has to be either a Republican, a convicted child murderer, or a turkey.”

Within weeks, Judge Robert W. Pratt of the Southern District of Iowa, apologized. “I acknowledge the wrongfulness of the comments,” he wrote, “and I regret the embarrassment they have caused to my court and the judiciary in general. I am truly sorry for the remarks and apologize for having made them.”

Last month, District of South Carolina Judge Joseph Dawson “expressed his sincere apology for any undermining of public confidence” in the judiciary that he may have caused by signing a contract that implied he’d offer his former employer legal advice even after he received his judicial commission. Such a “double-dip” violates federal law. Not only did Dawson say he was sorry; he also rewrote the contract.

Now imagine similar errors in judgment being made not by lower court judges, but by US Supreme Court justices. Would the nine, after they are caught, be as contrite?

The truth is you don’t have to imagine. The justices are frequently found to have committed ethical lapses, yet their hubris prevents them from apologizing. That hubris undermines confidence in the court.

Unapologetic Mistakes and Ethical Lapses

Justice Clarence Thomas was not apologetic when, in 2011, he was caught failing to complete the spousal employment section on 13 years’ worth of financial disclosure reports. He wrote without any sign of remorse: “It has come to my attention that information regarding [wife Ginni’s job] was inadvertently omitted due to a misunderstanding.”

When Justices Stephen Breyer and Samuel Alito were caught failing to recuse from a petition in 2019 despite owning shares in a litigant’s parent company, they, too, did not apologize, saying there was “no way” for them to know about the conflict. If that were true, how did I catch them?

Though filing inaccurate disclosures and failing to recuse despite a financial conflict are both violations of federal law, it’s nearly impossible to punish a justice, since under our laws and the Constitution, there’s impeachment or nothing, and impeachment isn’t happening.

But at a time when public opinion of the court is at its nadir a little humility would go a long way. I’m sorry for undermining public confidence of the judiciary by filing incomplete disclosures, Thomas could have written then—and again more recently when he made a similar error. Justices Stephen Breyer and Samuel Alito could have said: We regret the embarrassment we have caused to our court and the judiciary by not recusing in spite of our financial conflict.

(Yes, Justice Ruth Bader Ginsburg apologized after disparaging then-candidate Trump, yet her regret was several rungs short of sincere. And then-Judge Brett Kavanaugh expressed regret for outbursts during his 2018 confirmation hearings but had trouble finding the words “I’m sorry.”)

I thought of this pattern when watching a recent speech Alito gave in Rome to Notre Dame Law School’s Religious Liberty Initiative. It was clear from his castigation of several foreign leaders who disagreed with his opinion in Dobbs that he is a voracious media consumer, so he must know of the anguish the end to a constitutional right to abortion has caused countless women and families throughout the nation.

Yet Alito chose outrage over empathy, blaming secular culture for societal decline and decrying the inability of religious people to practice their faith in public—even as the court, time and again this June, decimated the wall separating church and state. It would be an understatement to say the speech undermined the public’s confidence.

What’s more, Alito’s trip sponsor is a frequent presence at the court, one whose views the justice sides with almost every time.

Missteps Undermine Confidence in the Court

Here’s what else undermines public confidence—what I call the “sallow docket,” since these missteps make the court look unwell:

  • Justice Ketanji Brown Jackson remaining a registered Democrat as she was elevated to SCOTUS this summer
  • Justice Amy Coney Barrett standing next to Minority Leader Mitch McConnell in 2021 while declaring the justices aren’t “political hacks”
  • Justices Alito and Kavanaugh meeting with the head of an anti-LGBT organization in 2019 right after the group filed briefs in several cases
  • Justice Neil Gorsuch speaking at a Trump-owned hotel months after his 2017 confirmation
  • Justice Elena Kagan failing to recuse from a single Obamacare case despite once running the government office responsible for crafting the law’s legal defense
  • Justice Sonia Sotomayor failing to recuse from petitions involving her book publisher, which has paid her more than $3 million
  • Justice Thomas failing to recuse from several 2020 election cases and from two Jan. 6 committee-related petitions, even though his wife had a stake in their outcomes.

It undermines public confidence that under Chief Justice John Roberts’ leadership the justices remain exempt from the canons of judicial ethics that all other federal judges, including Pratt and Dawson, must follow. With the court’s legitimacy at risk, the justices’ adoption of a formal ethics code would be a critical step in rebuilding public trust.

Alito might have felt a certain aura drifting in from St. Peter’s at his recent talk, but it’s important that he and his eight colleagues from time to time acknowledge that they’re not infallible.

I’m sorry if that is hard for them to hear.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Gabe Roth is executive director of Fix the Court, a national nonpartisan organization that advocates for greater transparency and accountability in the federal courts.