The latest Supreme Court controversy makes clear that it’s past time to rein in this institution.

Follow this authorJennifer Rubin's opinions

“The U.S. Department of Justice — including the U.S. attorney for the District of Columbia, an appointed U.S. special counsel and the solicitor general, all of whom were involved in different ways in the criminal prosecutions underlying these cases and are opposing Mr. Trump’s constitutional and statutory claims — can petition the other seven justices to require Justices Alito and Thomas to recuse themselves not as a matter of grace but as a matter of law,” Raskin wrote last week in a New York Times opinion article.

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Raskin based his argument on both the due process clause of the 14th Amendment and 28 U.S.C. Section 455, the statutory mandate that a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Presumably — but who knows?! — the two compromised justices would not consider the matter, leaving the other seven justices to rule on such a motion.

Although such an approach is important for educating the public about the manifest intellectual corruption of the court, it has two obvious flaws. To be blunt, fat chance getting Attorney General Merrick Garland to do it. This Justice Department is not known for its boldness, risk-taking or leadership. Moreover, the four remaining conservative justices would almost certainly brush aside this request. Still, it is worth pursuing (including the demand for Garland to do something), if for no other reason than to call attention to the two justices’ malfeasance and to Roberts’s singular lack of spine.

A second, more practical approach, would be an immediate Senate Judiciary Committee hearing. Both of the Alitos could be called to testify under oath. Expert witnesses on judicial ethics could explain the damage to the court resulting from an egregious refusal to recuse when obviously warranted. To date, the committee’s chairman, Durbin, has, to put it mildly, not grasped the importance of focusing public opinion and generating support for court reform. Perhaps Justice Alito’s obnoxious response last week will stir him.

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Third, as Whitehouse urged, the Senate should put on the floor his Supreme Court Ethics, Recusal and Transparency Act of 2023. It already passed through the Judiciary Committee. (Where is Majority Leader Sen. Charles E. Schumer?) This bill would “require Supreme Court Justices to adopt a code of conduct; create a mechanism to investigate alleged violations of the code of conduct and other laws; improve disclosure and transparency when a Justice has a connection to a party or amicus before the Court; and require Justices to explain their recusal decisions to the public.”

If Republicans in the Senate want to filibuster such an entirely reasonable measure, Democrats should invite them to spend the long, hot summer filibustering on the Senate floor. It would be a surefire way to make court reform a top-tier issue in the election.

The Republican-run House would not take up the bill even if Senate Republicans agreed to a vote. There again, a campaign focused on a dysfunctional GOP House........

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