An earlier version of this column incorrectly stated that Elena Kagan spoke to the American Constitution Society as a Supreme Court justice. This version has been corrected.
This time, though, it created some fuss. “Kavanaugh’s Holiday Party Appearance Renews Supreme Court Ethics Questions,” Bloomberg News reported. The party featured some of the usual Washington types, including journalists Ben Terris of The Post, Steve Holland of Reuters and Greta Van Susteren, along with members of what President Biden might call the ultra-MAGA crowd: Florida Rep. Matt Gaetz and former Trump advisers Sebastian Gorka and Stephen Miller. America First Legal Foundation, Miller’s new organization, has filed friend-of-the-court briefs in cases pending at the high court.
I think it might have been the better part of valor for Kavanaugh to send regrets this year, but my head is not exploding here. Even Supreme Court justices get to have social lives, and the Kavanaughs and Schlapps are longtime friends. Justices aren’t responsible for vetting their hosts’ guest lists. And Kavanaugh’s mere presence at an event at which another attendee filed an amicus brief hardly seems problematic.
So where does discretion come in? This is a tough time for the court, ethics-wise. The institution doesn’t need another headache, on top of the still-unsolved, as far as we know, leak of the abortion draft opinion in early May and reporting more recently about an effort by a religious right organization to curry favor with conservative justices. A conservative justice partying with conservative activists feeds into a perception of the court, fairly or not, as an institution tainted with partisanship.
The Code of Judicial Conduct for federal judges, which doesn’t bind Supreme Court justices, has this to say on the subject: “A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen.”
Which gets to the more concerning development: the tendency among justices to speak to, or attend events sponsored by, groups and institutions with which they are ideologically attuned. This is not solely a conservative phenomenon — Justices Sonia Sotomayor and, before his retirement, Stephen G. Breyer, have given speeches to the liberal American Constitution Society. But the conservative justices — with the distinct exception of Chief Justice John G. Roberts Jr. — seem lately inclined to favor friendly institutions, religious and conservative organizations.
Consider: In 2021, according to his financial disclosure form, Justice Samuel A. Alito Jr. spoke to Notre Dame Law School, St. Thomas Aquinas College, and the St. John’s University Law School Center for Law and Religion; this year, he appeared at the conservative Heritage Foundation, Catholic University’s Columbus School of Law and the Notre Dame Law School’s Religious Liberty Summit in Rome.
Justice Amy Coney Barrett spoke last year at Notre Dame and the University of Louisville’s McConnell Center, named for the Kentucky senator who engineered her hasty confirmation; this year, she appeared at the Ronald Reagan Presidential Library. Justice Clarence Thomas, meantime, spoke at a conference sponsored by the conservative American Enterprise Institute, the Manhattan Institute and the Hoover Institution, and attended a Heritage Foundation celebration of his 30 years on the bench; Mitch McConnell gave the keynote address.
And, of course, there is the Federalist Society, which heard from Justice Neil M. Gorsuch at its annual banquet in 2017 and from Kavanaugh in 2019. This year, Gorsuch made a closed-to-the-press appearance at the group’s Florida chapter, and four conservative justices — Alito, Gorsuch, Kavanaugh and Barrett — all appeared at the society’s November banquet. “It’s really nice to have a lot of noise made not by protesters outside my house,” Barrett told the cheering crowd. Alito’s opinion overturning Roe v. Wade was celebrated with a standing ovation.
The contrast with liberal justices is striking. Over the past two years, for instance, Sotomayor spoke at a children’s book festival, at a nonpartisan Connecticut speakers forum, remotely to a group of San Diego lawyers and, with Barrett, to the Ronald Reagan Foundation — as well as to a Chicago university dedicated to educating “socially conscious citizens” and the American Constitution Society.
I’m all for justices, liberal or conservative, explaining themselves and the court’s operations to the public. And perhaps some or all of the conservative justices fear that appearing in a more neutral and traditional venue, such as a law school, would open them to criticism or heckling. That’s not in any way far-fetched.
Yet justices send a message, intended or not, when they confine their appearances to like-minded audiences: These are our people, this is our team, these are our beliefs. On some level, everyone already knows that, but these events formalize and fortify the connection. And as judges understand better than anyone, appearances matter, in both senses of that word: where you go and how it looks.