Roundup: Supreme Court Problems and a New Scientific Integrity Policy

July 20, 2023 | 12:07 pm
A large "FOR SALE" sign looms on the lawn in front of the US Supreme Court, in a photo taken in 2010 as a protest against Citizens Unitedtakomabibelot/Flickr
Liz Borkowski
Science Network Contributor

This post is part of a series of quarterly roundups on scientific integrity.

In the second quarter of 2023, the Supreme Court issued problematic decisions on wetland protection and race-conscious college admissions, while news outlets reported ethical concerns regarding multiple justices, and public confidence in the Court reached a record low. The White House Office of Science and Technology Policy released its own scientific integrity policy, and the Biden administration took steps to make the regulatory process more inclusive.

Ethics and evidence problems at the Supreme Court

While the Supreme Court issued several decisions that ignored important evidence, journalists uncovered evidence of ethical problems that threaten the Court’s legitimacy. A ProPublica investigation found that for more than two decades, Justice Clarence Thomas has accepted luxury trips from real estate magnate and Republican megadonor Harlan Crow, and has failed to disclose these lavish gifts as required. The Washington Post reported that conservative judicial activist Leonard Leo arranged for tens of thousands of dollars in consulting payments to Thomas’s wife, Ginni Thomas; Thomas refused to recuse himself from decisions related to the January 6th insurrection, even though his wife sent texts urging the White House chief of staff to invalidate the presidential election results. The Intercept revealed that Justice Alito’s wife leased land to an oil and gas company, but Alito did not recuse himself from relevant cases involving EPA regulations. ProPublica reported that Alito took a luxury fishing trip (which included a flight on a private plane) with billionaire Paul Singer and failed to recuse himself from matters involving Singer’s hedge fund.

The Senate Judiciary Committee held a hearing on Supreme Court ethics, and Republicans as well as Democrats acknowledged that to restore public confidence, the Court needs a better ethics process. Two bills—the Supreme Court Ethics Act (S325/ HR927) and the Supreme Court Ethics, Recusal, and Transparency Act (S359/ HR926 )—would enshrine ethics requirements into law, but Republicans seem to hope that the Court will make changes on its own and reduce the pressure for legislation. A Marquette Law School poll found that only 25% of respondents had a great deal or a lot of confidence in the Court, the lowest level since polling began. 

Ethical problems are one possible explanation for low public confidence in the Supreme Court; decisions that seem driven by politics rather than evidence are another. In their Sackett v. EPA decision, a majority of justices substituted their preferences for the intent of Congress and the expertise of a federal agency, and dramatically restricted EPA’s ability to regulate pollution of wetlands—a move that threatens clean drinking water sources for millions of people. Despite overwhelming scientific evidence that polluting wetlands harms downstream waters, five justices decreed that EPA can only regulate wetlands under the Clean Water Act if the wetland has a “continuous surface connection” to a larger body of water. The decision also states that regulators must be able to point to “exceedingly clear language” in statute before altering the balance of regulatory power over private property, which suggests yet another avenue (in addition to the “major questions doctrine” the majority used to strike down greenhouse gas regulation in last summer’s West Virginia v. EPA decision) that justices willing to ignore evidence can use to strike down environmental regulations.

The majority also ignored evidence in their decision striking down Harvard and the University of North Carolina’s consideration of race as one of multiple factors in admissions decisions. As Justice Ketanji Brown Jackson noted in her dissent, the majority failed to acknowledge the continued existence of race-linked gaps in opportunity; its stance is “unmoored from critical real-life circumstances.” The majority declared that the universities’ race-conscious admissions policies violate the equal protection clause of the 14th Amendment, but Justice Sonia Sotomayor’s dissent examined the relevant Congressional record and found “no doubt that the Equal Protection Clause permits consideration of race to achieve its goal.” She also criticized the majority for ignoring careful fact-findings and instead relying on a single chart submitted by the plaintiffs to make unsupported claims about Harvard’s operations. This decision that ignores multiple forms of evidence will make it harder for colleges and universities to address the long-lasting effects of discrimination and human rights abuses that create an un-level playing field for members of historically excluded groups. In doing so, it impedes the diversity in science that benefits us all.

Looking ahead: The docket for the Supreme Court’s next term includes Loper Bright Enterprises v. Raimondo, which will provide another opportunity for the Court to limit the power of the executive branch to write regulations based on agency expertise. 

Scientific integrity policies

The Biden administration’s work to get federal agencies to establish strong scientific integrity policies continues. Earlier in the year, the administration released a framework for scientific integrity policies, which included a model scientific integrity policy, and instructed agencies to submit their draft policies to the White House Office of Science and Technology Policy (OSTP) for review. In April, 13 organizations wrote to OSTP Director Arati Prabhakar to thank OSTP and its working group for issuing the framework and to request four updates to it:

  • Transparent and explicit procedures for investigating allegations;
  • Explicit written policies that delineate scientists’ ability to communicate with the media and public about their areas of expertise and allow for prompt clearance of scientific materials;
  • Enforceable rules with penalties that hold all scientific integrity violators accountable, including political appointees; and
  • Protections for scientists from retaliation when they engage in policy dissent against a scientific integrity infraction and do not meet the definition of whistleblowing.

The organizations that made the recommendations—including environmental, public health, watchdog, reproductive health, and whistleblower groups—acknowledged that the administration’s timeline might not allow for updating the model policy. They urged that OSTP provide the recommendations to agencies and recommend their addition to draft policies that lack them.

In June, OSTP released a scientific integrity policy that largely followed the model scientific integrity policy they released earlier in the year. Scientific integrity advocates were pleased to see that it did not contain some model policy text that the 13 organizations pointed out was problematic (a prohibition on scientists making statements that “could be construed as being judgments of, or recommendations on” agency policy), but it largely makes general statements about enforcement and accountability rather than getting into the recommended specifics. It does identify individuals responsible for responding to allegations and holding perpetrators accountable.

Looking ahead: Agencies should soon begin releasing their draft scientific integrity policies for public comment.

Modernizing the regulatory process

To follow up on a presidential memorandum he signed his first day in office, President Biden signed an executive order to modernize the regulatory review process and make it more inclusive. Many of the changes affect the work of the White House Office of Management and Budget (OMB), and particularly the Office of Information and Regulatory Affairs (OIRA), which is part of OMB and plays a major role in creating regulations. Agencies drafting significant rules must conduct cost-benefit analyses and submit the draft rules to OIRA for review. During the OIRA review process, outside parties can request meetings with OIRA to present their views on the topic (they’re called EO 12866 meetings after a Clinton-era executive order). In practice, lobbyists for regulated industry dominate EO 12866 meetings, and the emphasis on cost-benefit analysis tends to result in weaker regulations—which then allow problems like pollution to persist and continue disproportionately harming marginalized communities.

President Biden’s new executive order makes several changes that add up to a vision for a new era in federal regulation. The order reduces the number of rules eligible for centralized review; directs OIRA to work with agencies to identify ways to make the rulemaking process more inclusive; and requires an overhaul of Circular A-4, which guides agencies’ cost-benefit analysis of their proposed rules.

OMB released a draft of an updated Circular A-4 and invited public comments. The draft contains several revisions that bring the process more up to date with advances in economic and policy analysis, and it instructs agencies to consider the distributional and equity impacts of their proposals. It also recognizes that US regulations have impacts beyond the country’s borders and that analysis of uncertainty is often necessary. Advocates have urged that the final version include clearer guidance on conducting distributional analysis, including more direction on how to address impacts for historically disadvantaged communities.

OIRA drafted guidance on EO 12866 meetings and invited public input. Based on earlier listening sessions and public comments, the guidance proposes strategies to help members of the public request and effectively participate in EO 12866 meetings, and it describes additional information about meetings that OIRA is considering making publicly available. Organizations such as the Center for Progressive Reform and Public Citizen praised the moves and recommended ways for OIRA to make the review process more accessible to groups that have not participated extensively in the past, such as by allowing participation via video or sound recordings, and accommodating commenters who have disabilities or are best able to communicate in languages other than English.

Looking ahead: The proposed Circular A-4 revisions are undergoing peer review, and revisions should be finalized by April 2024.

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