Public service is a public trust. The American people deserve a government that upholds the highest ethical standards.

But the recent attacks on the Supreme Court aren’t about improving judicial ethics — they’re about undermining them.

Judges are supposed to decide cases based on the law — not self-interest. But critics of the Court want the justices to rule based on self-interest — namely, the interest in avoiding criticism. Their goal is not to restore confidence in the judiciary but to bend judges to their will by shaming those they don’t like.

We know this because the critics aren’t applying consistent ethical standards. They’re applying hypocritical double standards.

Critics have called on Justice Samuel Alito to recuse himself in cases involving former president Trump. Why? Because his wife flew two flags at their home — the “Appeal to Heaven” flag and an upside-down U.S. flag.

The Appeal to Heaven flag was used during the Revolutionary War. It’s been displayed at San Francisco City Hall for decades (it came down only recently, after calls for Alito’s recusal). Flying the U.S. flag upside down is a long-recognized symbol of distress, as codified by Congress in 4 U.S.C. § 8(a), well before The Apprentice debuted on national television.

But still, Alito must recuse, the critics say, because some people claim that his wife’s flags signal support for Trump.

Yet Justice Ruth Bader Ginsburg didn’t recuse in major cases like Trump v. Hawaii and Trump v. Mazars USA, even though everyone agreed that she was opposed to Trump.

For example, Ginsburg told the New York Times, “I can’t imagine what the country would be with Donald Trump as our president. For the court, I don’t even want to contemplate that.” She even wore her “dissent collar” (“a spiky bejeweled necklace on a black band”) on the bench the day after the 2016 election — an act that “no one thought was a coincidence,” to signal her continued opposition to his election.

The Times didn’t chastise her — it lauded her. Her dissent collar “came to symbolize Justice Ginsburg’s status as a pop culture hero,” “shining like a beacon amid the dark sea of denaturing judicial robes.”

Ginsburg’s message was unambiguously hostile — while Alito’s (wife’s) message is merely assumed. But Ginsburg was courageous — while Alito is corrupt.

Critics alleged bad faith when Alito agreed that America should be “a place of godliness.” Never mind that our Pledge of Allegiance expresses loyalty to “one Nation under God” (4 U.S.C. § 4), and our national motto proclaims “In God we trust” (36 U.S.C. § 302).

Meanwhile, critics gave Ginsburg the benefit of the doubt when she noted “concern about population growth and particularly growth in populations that we don’t want to have too many of” while discussing abortion with the Times.

The attacks on Justice Clarence Thomas are likewise situational rather than sincere. Critics call on Thomas to recuse because his wife has expressed certain political views. Yet judges on the Ninth and D.C. Circuits have decided controversial cases despite their spouses’ public statements as leaders of the ACLU.

The ACLU’s former executive director in Southern California, Ramona Ripston, fought against the 2008 Proposition 8, California’s traditional-marriage ballot initiative. Yet her husband, Judge Stephen Reinhardt, didn’t recuse. As the group’s national legal director, David Cole championed the ACLU’s efforts in Trump v. Mazars USA concerning the president’s personal financial records. Yet his wife, Judge Nina Pillard, didn’t recuse.

The critics don’t attack those judges for failing to recuse — presumably because they approve of their spouses’ views. Nor do they criticize Ginsburg for failing to recuse in cases handled by her husband’s law firm.

Critics condemn justices for receiving travel or entertainment from friends — but only if the friends support the wrong causes. Such gifts are acceptable — indeed, celebrated — if they hold favored views. If the friend is a Texas philanthropist, the gift is shady. If the friend is a Hollywood celebrity, it’s glamorous. (One outlet described free concert tickets from Beyoncé to a justice as “an outstanding gift.”) Justices have gone on hundreds of free trips all over the world — but so long as it’s from someone the critics like, they don’t complain.

The double standards aren’t an accident. They’re intentional. They’re a strategy to create a perverse incentive structure for judges: If you rule the way the critics dictate, you won’t be criticized. You’ll be fêted. But if you don’t, you’ll be ostracized.

That’s why the double standards don’t seem to trouble the critics. Because, to the critics, this isn’t a debate — it’s a war. The critics don’t want neutrality. They want conformity. If you don’t conform, they’ll call you corrupt, unethical, racist, sexist, homophobic. They’ll say you’re just trolling, or auditioning. Whatever it takes for you to bend the knee. And even if you still won’t conform, they’ll attack you anyway, because others will get the message and comply.

Critics have repeatedly said that they want to pack the Court. But there’s no need for them to pack the Court if they can just pressure the Court to do what they want.

You might ask: Didn’t the Founders vest judges with life tenure to inoculate them from public opprobrium?

Certainly. But consider this: When you look at the résumé of a typical federal judge, you often see a bunch of fancy credentials. People who have devoted their whole lives to collecting gold stars tend to be motivated by one overarching objective: getting more gold stars. If that’s what drives you, then the threat of public scolding can be a powerful motivator.

And make no mistake: There’s no way for a principled originalist to avoid the attacks. It doesn’t matter to the critics if a judge is operating in good faith, dutifully following the law, and can prove it with his or her judicial record. It’s no defense that justices across the Court agree that we’re all duty-bound to apply the Constitution as written and understood by our Founders.

Because we’re talking about two inherently contradictory visions of the judiciary. Principled judges apply the law and let the chips fall where they may. The critics take precisely the opposite approach. It’s not about the reasoning — it’s about the result.

There’s no bridging this divide. And it’s important to understand why. Critics oppose the Court because they oppose the Constitution. In a New York Times op-ed, two law professors, one at Harvard and the other Yale, suggested “openly defying the Constitution to get to a more democratic order.” Another Court critic called our Constitution “trash” “written by slavers and colonists and white people who were willing to make deals with slavers and colonists.”

So it’s no wonder that a demonstrated record of principled originalism will not pacify the critics. If you think the Constitution is trash, then of course you’ll trash people who follow it faithfully. If you believe our founding charter is premised on white supremacy, then of course you’ll want to destroy anyone who believes in it. If you don’t like our Constitution, then you won’t like originalist judges.

The critics don’t want originalism. They want obedience.

It wasn’t always this way. There was once broad agreement that the members of the Court were dutiful, public-spirited jurists who deserve our respect — whether you agree with a particular ruling or not. Slate made this observation in 2015, long after the confirmations of Justices Thomas and Alito:

The justices are real humans who have real beliefs and real lives, and their legal and personal associations frequently have political overtones. And that is entirely okay. . . . The justices are honorable people. If they felt their personal or financial connections could truly sway their votes, they would recuse themselves. Demanding recusals in blockbuster cases will only encourage Americans to question the legitimacy of the final ruling.

That’s why no controversy erupted in 2008, when Justice Ginsburg, a former ACLU lawyer, spoke at an ACLU event and praised the organization’s work while ACLU cases were still pending at the Court. That’s why there was no story in 2021 when the Washington Post first learned about the flags flown by Mrs. Alito.

But now, all of a sudden, the flags are controversial. Why? The facts haven’t changed. But the critics’ motivations have. They didn’t want to destroy the Court before. But they sure want to destroy the Court now. As Semafor recently observed: “In a pre-Dobbs world, the Washington Post deferred to a Supreme Court justice. . . . Coverage of the Supreme Court can be divided into pre-Dobbs and post-Dobbs.”

As a nation of over 340 million, we’re bound to disagree on a wide range of issues. Yet we’re the most successful nation in human history. Because we believe in pluralism, not intolerance. We don’t bemoan our diversity of viewpoints — we celebrate it. We respect our differences, and we resolve them under our Constitution. Because we believe in competition and the free marketplace of ideas.

But that’s changing. We’re forgetting what makes America unique. We don’t disagree — we destroy. We don’t talk — we tweet. We live in a culture of cancellation, not conversation. We don’t engage with one another — we expel people from social and economic life.

I worry that this is all profoundly incompatible with America as we know it. If you tell half the country that their views don’t belong here, they may reciprocate the sentiment. You can’t unite if all you do is hate.

Our Constitution gives every American the right to criticize public officials — and gives judges life tenure to protect the judiciary. So we expect judges to handle rough terrain. And if they can’t, they can always resign, knowing there are plenty of others who would happily take their place.

My larger concern is that the war on the courts is just a symptom of a broader intolerance spreading across our country. Because if you think it’s okay to punish judges for their legal analysis — no matter how carefully reasoned — you surely think it’s okay to punish ordinary citizens for their personal views.

But most citizens don’t enjoy a guaranteed annual six-figure salary for the rest of their lives. So judges are uniquely positioned to fight the spreading virus of intolerance in our country. As I’ve told my clerks, there are two types of people in the legal profession — fighters and climbers. Judges have a choice to make: We can cower before the critics. Or we can stand firm and fight for the law. The choice seems obvious to me.