Chief Justice John Roberts has made it his personal mission to protect what he calls the Supreme Court’s "legitimacy"—the public's faith in the institution. As he wrote, "public trust is essential, not incidental, to our function."
Yet, that essential trust is now collapsing. Polls show public confidence at historic lows. While conventional wisdom points to polarizing decisions like the overturning of Roe v. Wade in Dobbs v. Jackson Women’s Health, I argue that the Court’s real crisis is fueled less by its current political swing and far more by two seismic factors:
The appearance of financial impropriety by its justices.
The complete capture of the nomination process by hyper-partisanship.
The Supreme Court is once again facing an existential challenge, and this time, the problem starts in the justices' own homes and private jets.
Let's be clear: The Court has never been entirely apolitical. From Chief Justice John Marshall onward, presidents have sought to pack the bench with justices aligned with their own political vision.
History is filled with examples of the executive branch defying or challenging the Court's authority:
Andrew Jackson famously defied the Court's order in Worcester v. Georgia (1832) regarding the removal of the Cherokee.
Abraham Lincoln suspended habeas corpus during the Civil War despite Chief Justice Taney's ruling in Ex parte Merryman that only Congress held that power.
FDR used his "court-packing" threat not only to intimidate justices into changing their minds on New Deal legislation but also to secure his political agenda.
So, the current political disagreement is not new. What is new is the total erosion of the institutional guardrails meant to keep political power from corroding judicial integrity.
The current partisan chasm was accelerating even before the modern ethics scandals. I trace the moment the Senate began treating judicial appointments as "ideological prizes" back to the nomination of Robert Bork in 1987. (1)
Nominated by Ronald Reagan, Bork's long record of originalist writings—questioning established civil rights and civil liberties precedents like the right to privacy cemented in the Griswold birth control decision—set the stage for a new kind of battle.
The Bork fight fundamentally changed the game:
A Presidential Campaign for a Judicial Seat: Opponents, mobilized by groups like the NAACP and Planned Parenthood, launched unprecedented national campaigns involving TV ads and mass mailings.
Philosophy Over Qualification: The debate was no longer about personal fitness but constitutional philosophy, turning the process into a proxy war over political ideology.
The End of Deference: The final, highly partisan 58–42 vote against him—with nearly all Democrats opposing and all Republicans supporting—marked the end of bipartisan deference to a president's judicial choices.
From that moment on, every subsequent contested nomination, from Thomas to Kavanaugh and Barrett, has been organized along strict party lines. The Court was now seen by all sides as central to partisan agendas on abortion, civil rights, and executive power.
While partisanship laid the groundwork, the ultimate, visceral corrosion of public trust stems from stunning appearances of ethical impropriety. This is where the Court's "special status has evaporated."
Nothing has been more damaging than the recent stream of revelations about justices accepting lavish, undisclosed gifts from wealthy political donors:
Justice Clarence Thomas: A landmark investigation exposed a decades-long, undisclosed relationship with Republican megadonor Harlan Crow. Gifts included:
A luxury trip to Indonesia, potentially costing over $500,000, featuring nine days on a 162-foot superyacht.
Regular flights on Crow’s private jet.
Annual summer vacations at Crow’s exclusive private resort.
Justice Samuel Alito: He failed to disclose a luxury fishing trip he took with billionaire Paul Singer, whose hedge fund later had business before the Court.
The Chief Justice’s Wife: John Roberts’ wife, Jane Roberts, shifted her focus to acting as a recruiter and earned millions in commissions from elite law firms that often argued cases before the Court.
As one ethics watchdog noted, "When a justice’s lifestyle is being subsidized by the rich and famous, it absolutely corrodes public trust."
These ethical lapses are only possible because of a shocking systemic failure: The Supreme Court is the only court in the country, federal or state, without a binding, enforceable code of conduct.
The ethical code created by Chief Justice Roberts after immense public pressure is widely considered toothless, as it has no enforcement mechanism. The nine justices are effectively left to police themselves, a standard not tolerated for any other public servant.
Beyond financial impropriety, the justices themselves are increasingly seen as just another political branch—a perception Roberts famously tried to fight by describing the judiciary as merely a referee who "calls only balls and strikes."
The Alito Flag Incident: Justice Alito flew an upside-down American flag—a symbol adopted by the "Stop the Steal" movement—at his home while the Court was considering cases related to the 2020 election. The display of a deeply partisan symbol by a sitting justice created an unavoidable appearance of bias.
The Ginni Thomas Conflict: Justice Clarence Thomas's wife, Ginni Thomas, is a paid conservative activist who was directly involved in efforts to overturn the 2020 election. Her text messages urged then-White House Chief of Staff Mark Meadows to "Release the Kraken." Despite federal law explicitly prohibiting justices from hearing cases where their spouses' interests are involved, Justice Thomas was the lone dissenter in a 2022 case that allowed the January 6th committee to obtain White House records—records that included his own wife’s communications.
The Shadow Docket: The Court is increasingly using a "shadow docket"—a stream of unexplained emergency orders—to make major decisions without full briefing or oral arguments. This process is being used in a "starkly partisan pattern," systematically favoring one side's political interests with no legal reasoning to the public. By acting on preference rather than reasoned judgment, the Court undermines its own authority.
Chief Justice Roberts is worried. His annual reports to Congress show an accelerating concern, shifting from administrative issues to addressing "external pressures and existential risks." He increasingly frames the judiciary as an embattled institution under threat, urgently requiring public confidence and respect.
Yet, in his focus on external threats—intimidation, disinformation, disregard for rulings—he has failed to address the core internal threat: the ethical crisis facing his own court. He wants the public to respect the institution, but respect must be earned.
The Court is the "least dangerous branch," as Alexander Hamilton put it, because it possesses neither the power of the sword (the executive) nor the power of the purse (the legislature). It relies entirely on its legitimacy to compel the public and the other branches to obey its decisions.
As that legitimacy is called into question by lavish gifts, partisan symbols, and unexplained rulings, the Court faces the inevitable question: What will compel obedience when the institution is no longer seen as a dispenser of impartial justice, but as just another political player?
(1) The nomination of Abe Fortas for Chief Justice in 1968 became a flashpoint for Southern segregationists like Senators Strom Thurmond and James Eastland, who sought to punish the Warren Court for its landmark civil rights rulings. While they framed their opposition around Fortas’s unconventional financial arrangements and his ongoing advisory role to President Lyndon Johnson, their true animus was rooted in judicial philosophy. Eastland and Thurmond leveraged the hearings to vent frustrations over the Brown v. Board of Education era and the "one-man, one-vote" ruling in Baker v. Carr, transforming what was historically a routine confirmation process into a hostile, partisan interrogation. By successfully sinking the nomination through a filibuster, they created the template for the modern, high-stakes judicial confirmation battles we see today.
Sources:
Bobelian, Michael. Battle for the Marble Palace: Abe Fortas, Earl Warren, Lyndon Johnson, Richard Nixon, and the Forging of the Modern Supreme Court. Schaffner P, 2019.
Cameron, Charles M., and Jonathan P. Kastellec. Making the Supreme Court: The Politics of Appointments, 1930-2020. Oxford UP, 2023.
Dooley, Alicia Bannon, and Douglas Keith. “Clarence Thomas, a Billionaire Benefactor, and the Supreme Court’s Ethics Crisis.” Brennan Center for Justice, www.brennancenter.org/our-work/analysis-opinion/clarence-thomas-billionaire-benefactor-and-supreme-courts-ethics-crisis.
Elliott, Joshua M., et al. “Friends of the Court: Clarence Thomas and the Billionaire.” ProPublica, resources.newhouse.syr.edu/awards/wp-content/uploads/sites/7/2024/01/01-ProPublica_FriendsoftheCourt_ThomasandtheBillionaire.pdf.
“Is the Supreme Court Legitimate?” Center for Religion, Culture & Democracy, 1 Dec. 2025, www.youtube.com/watch?v=twknPAX7EGk.
Gibson, James L., and Michael J. Nelson. “The Legitimacy of the US Supreme Court: Conventional Wisdoms and Recent Challenges Thereto.” Annual Review of Law and Social Science, vol. 10, 2014, pp. 201–219, doi:10.1146/annurev-lawsocsci-110413-030546.
Petro, Bill. “History of Presidents Opposing the Supreme Court: Separation of Powers.” Bill Petro: History of the World, billpetro.com/history-of-presidents-opposing-supreme-court/.
Sample, James J. “The Supreme Court and the Limits of Human Impartiality.” Hofstra Law Review, vol. 52, no. 3, 2024, hofstralawreview.org/wp-content/uploads/2024/05/AA.3.Sample.pdf. SSRN Electronic Journal, 2024, doi:10.2139/ssrn.4939408.
Schwartz, Mattathias. "Jane Roberts, Who is Married to Chief Justice John Roberts, Made $10.3 Million in Commissions from Elite Law Firms, Whistleblower Documents Show." Business Insider, 28 Apr. 2023, www.businessinsider.com/jane-roberts-chief-justice-wife-10-million-commissions-2023-4.
Sedler, Robert Allen. “The Legitimacy Debate in Constitutional Adjudication: An Assessment and a Different Perspective.” Ohio State Law Journal, vol. 44, 1983, pp. 93–132. Wayne State University Law School Faculty Research Publications, digitalcommons.wayne.edu/lawfrp/47.
United States, Senate, Committee on the Judiciary. “Senate Judiciary Committee Releases Revealing Investigative Report on Ethical Crisis at the Supreme Court.” U.S. Senate Committee on the Judiciary, judiciary.senate.gov/press/releases/senate-judiciary-committee-releases-revealing-investigative-report-on-ethical-crisis-at-the-supreme-court.
Note that all of the Chief Justice's annual reports are available here.
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