As their conduct has grown more unrestrained, so has the tenor of their public statements. Justice Alito’s peremptory, self-exculpatory op-ed in The Wall Street Journal in June, denying even a hint of an appearance of impropriety, was shocking — unless you happen to have caught his comments in the right-wing echo chamber. At conferences and galas, the justice unspools his grievances — against nonbelievers, same-sex marriage, the 21st century — sounding less like a jurist than “a conservative talk-radio host,” as Margaret Talbot wrote in The New Yorker.
This behavior has bled into the business of the court. Observers have seen a new contentiousness during oral arguments; Justice Alito’s after-hours persona is increasingly on display and of a piece with his opinions. Dobbs, last year’s decision on abortion rights, was typical of the genre, notable not only for its results but its biting, indignant and sometimes exultant tone. Even a unanimous ruling can be occasion for cheap shots: In Sackett v. E.P.A., handed down in May, the justice kicked the agency when it was down, suggesting that if it had its way, it would regulate “swimming pools and puddles.” In a similar vein, Justice Gorsuch used a routine court order as a pretext for an eight-page jeremiad, portraying pandemic-era restrictions as a systematic assault on American freedom, and seeing, in the closure of public spaces during the worst of the emergency, creeping signs of “autocracy.”
Whatever Chief Justice Roberts thinks of their behavior, it is plain that judicial independence on his court has come to mean judicial license: a freedom to do and say what a justice pleases. In May, at an American Law Institute gala, the chief sought to “assure people that I am committed to making certain that we as a court adhere to the highest standards of conduct.” Yet he acknowledged no lapse, announced no new policy, made no promise to keep Congress or the public informed.
What he did do was note the judiciary’s “status as an independent branch of government.” This — the separation of powers — has always been his trump card. He cited it in April when he refused to testify before the Senate Judiciary Committee on the issue of ethics. He cited it in 2012, brushing aside calls for the court to adopt the code of conduct that binds other federal judges. At a time when the justices have lost the public’s trust, Chief Justice Roberts has reaffirmed that they will continue to serve as their own judges and jury, their own inspectors general and ombudsmen. They will ask themselves for leniency, and are sure to bestow it. Justice Alito brought this home in his op-ed: There is no appearance of impropriety, because he tells us there is not. Justice Alito has cleared Justice Alito.
But the appearance of impropriety cannot simply be waved away. It cannot be ruled inadmissible in the court of public opinion. To paraphrase Justice Potter Stewart, we know it when we see it — and indeed, we have seen a good deal of it. Perhaps, behind the scenes, the chief is working toward reform. Perhaps he has admonished his colleagues, urged restraint. If so, he has failed. To redeem the reputation of his court, he must do more to put his house in order. “This is something that the court itself needs to come to grips with,” Senator John Cornyn of Texas said as the term was ending. “I hope that John Roberts will do that.”