Chief Justice John Roberts signaled Tuesday that the Supreme Court is attuned to public ethics concerns about the justices, saying that he’s seeking ways to address those worries without jeopardizing the high court’s independence.
“I want to assure people that I’m committed to making certain that we as a court adhere to the highest standards of conduct,” Roberts said during a speech to a legal gathering in Washington. “We are continuing to look at things we can do to give practical effect to that commitment, and I am confident there are ways to do that that are consistent with our status as an independent branch of government and with the constitution’s separation of powers.”
Roberts did not mention Justice Clarence Thomas or recent reports that he received free luxury trips for years from a Texas developer without reporting most of them on public disclosure forms, nor did the chief acknowledge significant pressure from Democrats in Congress for the Supreme Court to adopt a formal ethics code and binding enforcement mechanism.
However, Roberts appeared to concede that the public outcry over the matter had prompted some degree of consternation on the part of the justices. He referred obliquely to ethics as an “issue of concern inside the court.”
Roberts’ comments come a month after the Supreme Court issued an unusual joint declaration on ethics, but the “Statement on Ethics Principles and Practices” didn’t break much new ground, and it stopped well short of adopting an enforceable code of conduct that critics have been clamoring for.
The chief justice made his remarks during a conference and ceremony marking the 100th Anniversary of the American Law Institute, a group mainly known for publishing treatises on various aspects of U.S. law.
Roberts described his 15-minute, after-dinner speech to hundreds of attorneys at the National Building Museum as the first of its kind since the outbreak of the pandemic. He used the occasion to lament various recent events in the “legal milieu,” including the heckling and silencing of an appeals court judge at Stanford Law School last year and the protests that broke out at the homes of some Supreme Court justices last year after POLITICO published a draft opinion in a key abortion case and reported that the court was poised to overturn Roe v. Wade, as it did less than two months later.
Roberts also expressed disappointment that the justices now require “24/7” protection by marshals. He said the security concerns related to last year’s seismic abortion case, Dobbs v. Jackson Women’s Health Organization, had caused him deep distress.
“I’m asked: What was the hardest decision I had to make in 18 years? Was it this First Amendment case? Was it that death penalty case? Was it some major separation of powers case? None of those. The hardest decision I had to make was whether to erect fences and barricades around the Supreme Court. I had no choice but to go ahead and do it,” Roberts said.
Roberts was introduced by Justice Elena Kagan, who effusively lauded his judicial temperament and especially his writing as she saluted him for receiving an award named after legendary appeals court Judge Henry Friendly.
“The chief is incapable of writing a bad sentence. His writing has depth, intelligence, crystal clarity, grace, humor and understated style,” said Kagan. “That writing is, in my humble opinion, the best writing in law. He is a consummate legal craftsman.”
Kagan acknowledged that she and Roberts often don’t see eye to eye on substantive matters of law, but she also alluded to the fact that she and the chief stood alone in dissent in a high-profile case decided last week involving Andy Warhol’s estate and the rights of artists to use earlier works by others as inspiration.
“There’s a lot that that the chief and I don’t agree on, except apparently about copyrights where we are two kindred souls — if lonely ones,” said Kagan.
Kagan’s tone Tuesday night seemed a sign that the public tensions between her and the chief have abated since last summer, when Kagan made a series of public appearances in the wake of Dobbs where she suggested some of her fellow justices were cranking out opinions to reach a result they personally desired without regard to legal merit.
Roberts later said he thought it was inappropriate for people to publicly question the court’s legitimacy because they disagreed with a particular decision, but Kagan continued to speak out publicly and to suggest the public doubts were justified.
Roberts insisted Tuesday night that the justices are keeping the peace among themselves despite their heated disagreements in some cases.
“I am happy that I can continue to say that there has never been a voice raised in anger in our conference room. Our court consists of nine appointees of four presidents who deal with some of the most controversial issues before the country, yet we maintain the collegial relations with each other,” the chief justice said, before acknowledging the court has faced tensions and challenges in recent time.
“When I wander down the halls and see a colleague, I am always happy to have the chance to chat,” Roberts said, before adding wryly: “Now, to be fair, there are many days where I don’t feel like walking down the halls.”
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