The Supreme Court has mostly resisted the calls for reform that have followed a series of highly-partisan decisions and revelations about the personal conduct of Clarence Thomas and Samuel Alito—that is, aside from a few vague words of assurance from Chief Justice John Roberts this spring that the court was “committed” to handling its issues internally. But according to one member of the bench’s conservative majority, the court has made some progress—and changes may be forthcoming. “The chief justice spoke about that in May and said that we’re continuing to work on those issues,” Brett Kavanaugh said at a legal conference in Cleveland Thursday. “That is accurate—we are continuing to work on those issues.”
“I’m hopeful that there will be some concrete steps taken soon on that,” he added.
Kavanaugh did not say what the internal reforms might include. But the Donald Trump-appointee praised his colleagues as “public servants” who are “hard-working and care a lot about the court and care a lot about the judiciary as a whole,” and expressed hope the potential changes would allow the American people to feel the same “respect for the institution.”
“To the extent that we can increase confidence,” he said, “we’re working on that.”
That would seem a welcome prospect. As leading Democratic critics of the scandal-plagued court told me in the spring, the most realistic possibility of ethics reform, for now, would have to come from the court itself, given the stiff GOP opposition to addressing its shortcomings. But there’s reason to be skeptical, given the court’s track record of policing itself.
First, there’s the question of whether the court will, in fact, end up taking action. The ethics code Elena Kagan, a liberal, said the court was considering four years ago never came to pass. This time may be no different. Of course, the court’s legitimacy crisis has drastically deepened since 2019—thanks, in part, to the disastrous Dobbs decision and the grave conflict-of-interest scandals that have swirled around Thomas and Alito. But the court has seemed to treat the fallout more as a problem of public perception than a reflection of its own brokenness. “Simply because people disagree with an opinion,” Roberts said last year, amid plummeting public trust in the wake of Roe’s overturn, “is not a basis for criticizing the legitimacy of the court.”
If the chief justice is unwilling or unable to understand why trust in the Supreme Court has hit a historic low, it’s hard to feel very confident that any reform he does implement will be meaningful. Democrats like Dick Durbin and Sheldon Whitehouse have called for justices to be held at least to the same standard of others in the judicial branch—which would seem a small thing to ask of nine unelected, lifetime appointees with awesome power over the lives of their fellow Americans. But Roberts specifically shot down that idea in April, turning down Durbin’s invitation to appear before the Senate Judiciary Committee with some bilge about the need to preserve the court’s “judicial independence” as well as a “Statement on Ethics Principles and Practices” he said all nine members adhere to. That statement was deeply inadequate, but all nine justices—including the three liberals in the minority—signed it.
Kavanaugh, no stranger to false assurances, suggested he and his colleagues would now go beyond that—that they would take “concrete steps” to restore trust in the court. But given his and the court’s history, we’ll believe it when we see it.
Eric Lutz
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