Supreme Court Justices Aren’t Even Pretending Anymore

Two key members of the Supreme Court’s dominant conservative majority are getting bolder about their links to members of the right-wing intelligentsia and Republican political elite, as concerns mount about the impartiality of the court.

Justice Neil Gorsuch appeared at a Federalist Society event Friday, making a speech that was closed to the media. And the same day, the watchdog group American Oversight released a June 2021 email obtained via a public records request in which Ginni Thomas—wife of Justice Clarence Thomas—tells the office of Florida Gov. Ron DeSantis that DeSantis “has been in contact” with her husband “on various things as of late.”

The two incidents only exacerbate concerns about the court’s impartiality, which is back in the spotlight as President Joe Biden prepares to nominate a successor to Stephen Breyer. Liberals and conservatives on the Supreme Court have gone to great lengths to address the worsening of public confidence in the court, and the perception of the court as a political institution like Congress or the presidency. 

During a lecture at the University of Notre Dame last fall, for example, Thomas maintained that the court was not ruling based on “personal preference,” as he alleged the media made it seem. 

“[The media] think you’re for this or for that. They think you become like a politician,” Thomas said at the time. “That’s a problem. You’re going to jeopardize any faith in the legal institutions.”

Gorsuch spoke at the Federalist Society’s conference of its Florida chapters on Friday, held at Disney’s Yacht and Beach Club Resort in Lake Buena Vista. His appearance was part of a lineup that included DeSantis, former Vice President Mike Pence, and former White House Press Secretary Kayleigh McEnany. The day after Gorsuch’s appearance, the conference included a panel discussing abortion and “The End of Roe v. Wade”—an issue at the heart of a case that’s currently being considered by the Supreme Court.

Gorsuch is far from the first Supreme Court Justice to speak before the Federalist Society—which held a key role in shaping former President Donald Trump’s judicial appointments—while serving on the bench. In November 2020, Justice Samuel Alito gave a keynote address to the Federalist Society in which he said the COVID-19 pandemic “has resulted in previously unimaginable restrictions on individual liberty” and said that “religious liberty is fast becoming a disfavored right.”

But Gorsuch’s event, which also featured his former clerk and former acting Assistant Attorney General Ethan P. Davis, was closed to the press. The Supreme Court did not immediately respond to a request for comment. The Federalist Society directed questions about whether Gorsuch was paid for his speech or what he talked about to a public relations firm, which didn’t immediately respond to a request for comment. 

Gabe Roth, the executive director of the Supreme Court watchdog group Fix the Court, told VICE News in an email that he doesn’t “have a problem with” Gorsuch speaking at the Federalist Society. ​​

“I simply wish that he and other justices who frequent FedSoc would give just as many talks before liberal legal organizations instead of only talking to their ‘own’ side,” Roth said. “And all these speeches should, of course, be open [to the] press.”

The Thomas situation, however, would be a departure from the norm. The email to DeSantis’ office published by American Oversight shows Ginni Thomas asking DeSantis to join a “cone of silence” call with a group of “conservative patriots” to “focus on action items for the greatest threats and opportunities to constitutional governance.”

Ginni Thomas has long been known for her right-wing activism, working at various points for the Heritage Foundation and as a special correspondent for the conservative website the Daily Caller, which was founded by Tucker Carlson.

Neither the Supreme Court nor DeSantis’ office immediately responded to questions about how, when, or how often DeSantis and Thomas were in contact, or if they’re still in contact. But Ginni Thomas’ suggestion that her husband was in regular contact with DeSantis, the hard-line conservative Florida governor frequently mentioned as a potential 2024 presidential candidate, “looks bad,” Roth said.

“We currently don't know when and how often the two talk, but from an ethics perspective, it better had stopped by mid-December, which is when the state of Florida was a party in the Court's COVID test-or-vax case,” Roth said. “There’s already enough ethical questions swirling around Justice Thomas, and I'd hope he'd have the good sense to cease contact with the governor during the duration of that case, since as a rule, judges and justices should not be in touch with individuals who have business before their courts.”

The Code of Conduct for U.S. Judges, which was first adopted in 1973, says judges “should not initiate, permit, or consider ex parte communications or consider other communications concerning a pending or impending matter.” But U.S. Supreme Court justices are, incredibly, not formally bound by any sort of ethics code. 

Last month, a group of two dozen legal ethics scholars wrote to Chief Justice John Roberts asking him to adopt a code of conduct for the Supreme Court.

“We believe that in the vast majority of cases, the justices have made the right call,” the legal scholars wrote.

“But at a time when public institutions are redoubling their efforts to improve the public’s trust, we maintain that a formal, written Code, offering a uniform set of principles that justices and the public alike would look to for guidance, would benefit the Court and the nation.”

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