The Supreme Court got caught up in another controversy on Monday, when secret recordings of Justice Samuel Alito and Chief Justice John Roberts began circulating on social media.
The recordings, released by a self-described “advocacy journalist,” led some to question whether Alito, who was already facing pushback over his wife’s alleged support for those who stormed the U.S. Capitol on Jan. 6, 2021, is truly as impartial as Supreme Court justices are meant to be.
“One side or the other is going to win,” Alito says in one of the secret recordings, according to The Associated Press. “There can be a way of working, a way of living together peacefully, but it’s difficult, you know, because there are differences on fundamental things that really can’t be compromised.”
Alito is one of the key figures in the court’s ongoing legitimacy crisis, which involves questions about everything from the court’s financial disclosure process to how justices spend their free time.
He recently wrote to Congress to defend his ability to impartially consider cases on former President Donald Trump’s claims of presidential immunity and the Jan. 6 protests.
Alito and his fellow justices are engaged in an effort not just to defend his individual reputation but the Supreme Court’s as a whole.
Supreme Court code of conduct
In his letters explaining why he will not recuse himself from the Supreme Court cases involving Trump and the Jan. 6 rioters, Alito cited the Supreme Court’s code of conduct.
The code was enacted in late 2023 in response to rising concern about the justices’ actions. Its intro explains its goal of clearing up confusion surrounding the court’s work, and asserts that the justices held themselves to high standards even in the absence of such a document.
“The absence of a Code, however, has led in recent years to the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules. To dispel this misunderstanding, we are issuing this Code, which largely represents a codification of principles that we have long regarded as governing our conduct,” the intro says.
The code outlines how the justices should behave, including outside the Supreme Court building at public or private events. It urges them to be aware of how their actions will affect the court’s reputation and to avoid associating with groups that go against the court’s values.
“A Justice should respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary,” the code says.
Importantly, the code does not prevent the justices from having a range of hobbies and interests or from being engaged in their communities. While they can’t endorse a political candidate or lead a political organization, they can join a church, teach a college course, offer free legal advice to loved ones or lead a nonprofit.
“A Justice may engage in extrajudicial activities. ... However, a Justice should not participate in extrajudicial activities that detract from the dignity of the Justice’s office, interfere with the performance of the Justice’s official duties, reflect adversely on the Justice’s impartiality, lead to frequent disqualification, or violate the limitations set forth below,” the code says.
At multiple points, the code raises the idea of a reasonable, neutral observer, asking judges to consider how such a person would rate their behavior.
Alito pointed to one such line in his letters, arguing that an unbiased observer would not expect him to recuse himself.
“A reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude this event does not meet the applicable standard for recusal,” he wrote, according to The New York Times.
Secret recordings of Supreme Court justices
A key challenge facing Alito and other Supreme Court justices right now is that their idea of a reasonable, neutral observer is not the type of person appearing on news programs or writing opinion columns these days.
Debates about the court are instead led by people who do have serious concerns about various justices’ ability to be impartial, and these people present themselves as reasonable even if the justices don’t see it that way.
Even the woman who collected and then released the secret recordings of Alito and Roberts, who has been criticized by experts on media ethics, has described her actions as justifiable and necessary.
“We have a court that has refused to submit to any accountability whatsoever — they are shrouded in secrecy,” Lauren Windsor said in an interview with The New York Times. “I don’t know how, other than going undercover, I would have been able to get answers to these questions.”
In the face of such claims, the justices’ assurances that they have done nothing wrong don’t amount to much. A recent survey from Gallup found that Americans’ views on the Supreme Court are near record lows.
In September 2023, 41% of U.S. adults said they approved of the way the Supreme Court was handling its job, down from 58% in July 2020.
Supreme Court rulings
So where does the Supreme Court go from here?
The secret recordings make it clear that Roberts remains focused on the daily work of the court. He said, as he has multiple times in the past, that the court’s job is to decide cases, not to throw its power behind one political or religious camp.
“Would you want me to be in charge of putting the nation on a more moral path?” the chief justice said, according to The New York Times. “That’s for people we elect. That’s not for lawyers.”
But even if the justices keep their heads down and focus on their work, the current wave of negative attention won’t end, at least not for a few weeks.
That’s because the court is in the midst of its busiest month of the year, when it wraps up its term by releasing dozens of opinions. By July 1, the court is expected to decide not just the cases on presidential immunity and Jan. 6 rioters, but also cases on emergency abortions, bump stocks and Chevron deference, as the Deseret News previously reported.
The rulings will further enflame debates about whether the Supreme Court is fair, prompting calls for more oversight, court expansion or forced recusals.
Then, the justices will enter their summer recess, a time when many speak at conferences and other events. They could use these speaking engagements to defend the court or, as they have in the past, to weigh in on legal trends, a step that, unsurprisingly, always makes someone mad.
The bottom line is that the Supreme Court’s current legitimacy crisis didn’t begin with the secret recordings and it won’t end with them either. The question is whether it’s reasonable to expect meaningful solutions anytime soon.