John,

Earlier this month, the Supreme Court commenced its new term, with a new slate of high stakes cases. But one thing remains unchanged: the Court’s ongoing ethics issues.

Repeated shocking ethics scandals have steadily eroded public confidence in the Court to the extent that we’re now left wondering whether the justices are deciding cases based on the law or their own financial and personal biases.

John, this is a serious problem. Yet the Court is ignoring these ethics issues and instead has focused on expanding their own authority into areas historically entrusted to other branches of the federal government.

As the Supreme Court stakes out an ever-growing role for itself in resolving questions on divisive and urgent issues, it has become increasingly important for Congress to bring the balance of power back to the people’s representatives and ensure that the justices are held to the highest ethical standards.

That’s why CREW has urged Congress and the Supreme Court to implement a binding code of conduct for the Court to build a more accountable, transparent and independent judiciary.

We’ll dive deeper into our growing concerns about the Supreme Court’s expanding power, but first, we need your support. Reforming the Court to ensure it’s more ethical and accountable won’t be easy, and we can’t do it without your support. Please consider donating to CREW today to support our fight for judicial ethics reform →

The dramatic expansion of the Supreme Court’s power did not happen overnight. In case over case in the last term, we watched the Court issue decisions that grew its own political power.

One case that made this particularly clear was Loper Bright Enterprises v. Raimondo, an administrative law challenge that made headlines when in its decision the Court overturned the nearly 40-year-old Chevron doctrine.

Under Chevron, courts would *defer* to reasonable agency interpretations if Congress had not directly addressed the question at issue. But under the new Loper Bright framework, if a statute is silent or ambiguous a court must use its own “independent judgment” to determine whether an agency acted within its authority.

That, as Justice Kagan put it, gave the Court “exclusive power over every open issue” of regulatory law and effectively turned the Supreme Court “into the country’s administrative czar.”

Two related cases granted judges further power – in Corner Post, Inc. v. Board of Governors of the Federal Reserve System, the Supreme Court effectively eliminated any time constraints for when someone can challenge an agency regulation, and in SEC v. Jarkesy, the Court held that when the SEC seeks civil penalties against a defendant for securities fraud, the defendant is entitled to a jury trial in federal court.

So now life-tenured judges have the power to effectively regulate many areas that Congress had entrusted to agencies. That’s an extraordinary shift in power from the legislative and executive branches to the courts.

In Trump v. Anderson, CREW and co-counsel represented six Republican and unaffiliated voters who, based on President Trump’s actions during the January 6th insurrection, challenged Trump’s eligibility to appear on Colorado’s Republican presidential primary ballot under Section 3 of the 14th Amendment.

After Colorado’s highest court found that Trump had engaged in insurrection and held that he should be excluded from the ballot, Trump appealed to the Supreme Court.

Then, in an unsigned opinion, the justices of the Supreme Court unanimously agreed on the only holding necessary to resolve the case: a state cannot enforce Section 3 against a presidential candidate. But the Court’s majority nonetheless went further than it needed to and tried to decide questions about which actors could enforce Section 3.

Departing from the foundational principle that a court should decide only what is necessary to resolve a case, the majority preemptively foreclosed almost all avenues of enforcing Section 3 by seemingly declaring that only Congress may do so.

The remaining justices were left to wonder why, “[i]n a case involving no federal action whatsoever,” the majority decided to undertake that “complicated question.” The majority’s disregard for the principle of judicial restraint became even more salient.

Then, in Trump v. United States, the Court considered whether the former president was immune from prosecution for allegedly conspiring to overturn the November 2020 election. In a split decision, the majority of the justices granted former presidents sweeping immunity for both core constitutional functions and vaguely defined “official acts.”

As Justice Jackson explained, the Court effectively “elbow[ed] out of the way both Congress and prosecutorial authorities within the Executive Branch, making itself the indispensable player in all future attempts to hold former Presidents accountable to generally applicable criminal laws.”

These considerable expansions of judicial power in Anderson and Trump were advanced by a Chief Justice who swore under oath that “no one is above the law” and by two associate justices who failed to recuse despite public reports of possible bias.

Justice Alito participated in both decisions even though flags associated with the insurrectionists and the “Stop the Steal” movement flew at his homes. And Justice Thomas, who boasts a long history of accepting (and failing to disclose) lavish gifts from political activists, did not disqualify himself from considering these cases even though his wife supported the former president’s efforts to overturn the 2020 election.

John, our work for ethics reform has become even more critical as the Court carves out an expanded role for itself in resolving questions that deeply affect the same people who are losing confidence in the legitimacy of the Court as an institution.

That’s why CREW is committed to making critical ethics reform happen. From imposing term limits and a binding code of conduct, to creating an ethics panel to help resolve conflicts of interest, there is plenty that should be done to restore public confidence in the Supreme Court.

If you believe in what we’re doing, support us in continuing this important work by making a donation to CREW today →

Thank you,

Debra Perlin
Policy Director
CREW