The Lowest Court, Part 2

The paradigmatic sneer

Sep 01, 2023

This post isn’t about Brett Kavanaugh, although it’s worth remembering that 83 ethics complaints were brought against him during his nomination hearings. Chief Justice John Roberts appointed a federal panel of judges to investigate those complaints but, despite classifying them as “serious,” they were dismissed. The panel concluded that they had no authority to discipline a justice and by that time, Kavanaugh had already been elevated to the Court by a vote of 50-48. Thanks, Mitch McConnell.

Three years after Kavanaugh was confirmed, we learned that the FBI had received over 4,500 (!) tips regarding Kavanaugh. (It’s worth nothing that this was the first time the FBI ever felt the need to establish a tip line during the hearing of a SCOTUS nominee ¯\_(ツ)_/¯. ) Much more troubling is the fact that the FBI didn’t bother to follow up on any of those tips.

In a joint letter to FBI Director Chris Wray dated 21 July, 2021, Senators Sheldon Whitehouse (D-RI) and Chris Coons (D-DE) wrote, “If the FBI was not authorized to or did not follow up on any of the tips that it received from the tip line, it is difficult to understand the point of having a tip line at all.” Good question. But the FBI was not authorized to or chose not to follow up. Justice Kavanaugh’s potentially troubling past behavior has dropped out of the public consciousness. His on-Court behavior, while egregious in the context of his rulings, pales in comparison to that of his senior colleagues Clarence Thomas and Samuel Alito.

Kavanaugh’s sneer, however, has become for me paradigmatic of the attitude the illegitimate super-majority has towards the other two branches of government, to the American people, and, indeed to anybody who isn’t a billionaire willing to foot their bills.

Thanks to extraordinary reporting from ProPublica, recent attention has been on Thomas’ corruption which I wrote about here. Thankfully, the Supreme Court is currently on recess so we’ve had a respite from their attempts to destroy American democracy and cause irreparable harm to large swaths of the American people, but Clarence Thomas filed amended financial disclosures yesterday in order to account for all of the “inadvertent omissions” (otherwise known as failures to disclose) uncovered back in May.

In those disclosures, Thomas makes the gobsmacking claim that it is us, the American people, who forced him to fly on private planes due to security concerns raised after the Dobbs decision—you know, the one in which the Court relegated women to second-class citizenship and stripped away their bodily autonomy. (Also, wow—I wish I’d known that “security concerns” were enough to qualify me to get a lift on a private plane whenever I wanted one.)

In an effort to ensure that his client keeps his hard-earned reputation as an entitled prima donna, Thomas’ lawyer, Elliot S. Berke, attached a statement tot he disclosure. There is a “partisan feeding frenzy” against Thomas, he wrote. Calls for accountability, therefore, constitute “political blood sport … motivated by hatred for [Thomas’] judicial philosophy, not by any real belief in any ethical lapses.”

But are those two things really mutually exclusive? I am very motivated by my hatred of Thomas’ judicial philosophy and I truly believe he has committed “ethical lapses” (nice euphemism). One of the reasons I believe this is because there is proof that he did including his amended financial disclosure.

Imagine having not just a lifetime appointment but also the absolute impunity to fraternize with whomever you want; ignore precedent because there is nobody to prevent you from ruling however you damn well please; and accept expensive gifts and vacations from people with a vested interest in how you rule on the court? (To be clear, I don’t think Thomas is receiving bribes. From the moment he became a Supreme Court Justice, there was never any doubt that his votes would always advance the agenda of the far right whenever possible. No, the gifts are rewards for his continuing to toe the line—and insurance that he will continue to do so. This, by the way, isn’t a justification. His behavior over the decades has been mind-bogglingly corrupt.)

Thomas, as an associate justice, makes almost $300,000 a year. He has assistants and clerks and drivers and security that are paid for by our taxes. I don’t know how much Ginni Thomas makes, but we recently learned that, between 2011 and 2012 Leonard Leo, via a conservative polling company, paid her $100,000. She runs a private consulting firm, Liberty Consulting, with clients like the aforementioned Leo, and anti-Muslim creep Frank Gaffney. She’s texting buddies with Mark Meadows. She has connections and those connections know her husband is for sale.

In other words, the Thomases make a lot more money than the vast number of Americans. They don’t, however, make nearly as much as those billionaire benefactors. To be honest, if I had a friend who was a billionaire and they invited me to take their private jet to sail on their private yacht to go exploring around the islands of French Polynesia I might take them up on the offer—assuming there were no conflicts of interest or potential ethical breaches. But I’m not a Supreme Court justice (and I don’t have any friends who are billionaires).

ProPublica’s investigation uncovered more than illicit gifts. Harlan Crowe, Thomas’ primary ATM, also paid off his mother’s mortgage, financed extensive upgrades to her house, and paid $6,200-a-month boarding school tuition for Thomas’ grand-nephew whom he’s “raising like a son.” Private planes and luxury vacations are one thing, but unless I were in the most dire circumstances, I can’t imagine letting anybody else pay for my kid’s education or any of the other things responsible, solvent adults are supposed to take care of for themselves and their families.

I’d say the Thomases don’t have any mirrors in their home, but it’s much more likely they have no shame and have convinced themselves that they deserve whatever perks they get. At the same time, they believe the rest of us don’t deserve health care (including abortion services), a living wage, clean air or water, a healthy planet, or a functioning democracy.

As my brilliant friend, Dahlia Lithwick recently wrote in Slate: “The gifts, the trips, the spectacle of ultra-wealthy yachts and wines are almost never explicitly tied to the larger conversation about which billionaires own which justices and how much they pay to own the court. It’s a spectacle, for sure, in much the same way Mar-a-Lago’s chandeliered bathrooms are a spectacle, but the spectacle isn’t the story here; the bustling marketplace for renting a life-tenured jurist is the story. And how we allowed this to happen? That’s the scandal.”

It is the Court itself, the way it functions, that is corrupt. I don’t think Alito, for example, would be above taking the kinds of gifts Thomas routinely accepts. Given how unpleasant he is, it’s possible he just can’t find any billionaires who can bear to be in the same villa, yacht, or private plane with him. Instead, his particular brand of corruption (shared to varying but scandalous degrees by Thomas, Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch, and John Roberts) lies in his arrogant belief that he can ignore stare decisis; ethics considerations are beneath him (if he wants to give political speeches to partisan organizations here or abroad he will do so); and he is perfectly entitled to impose his own narrow and deeply retrograde religious ideology on American jurisprudence.

Every member of the federal judiciary is subject to a code of conduct—except Supreme Court justices. Democrats have introduced legislation to change this untenable situation only to be met with resistance from Republicans. Chief Justice John Roberts also does not believe that Supreme Court members need to be bound by an ethics code.

In response to suggestions that the Supreme Court be expanded to restore its legitimacy, former Justice Stephen Breyer claimed, before his retirement, that “if the public sees judges as politicians in robes, its confidence in the courts—and in the rule of law itself—can only diminish, diminishing the court’s power, including its power to act as a check on other branches. . . . Structural alteration motivated by the perception of political influence can only feed that latter perception, further eroding that trust.”

That would be relevant if, as First Amendment attorney Anne Champion put it, “The Court hadn’t eroded trust in itself through politicized decisions from Dred Scott on down.” The idea that attempting to reform a body that has done so much damage to democracy is somehow dangerous to its integrity would be laughable if it had been said by anybody other than a Supreme Court justice. It’s remarkable how often justices seem to be ignorant of the history of their own institution and blind to the behavior of their colleagues, but it appears that such ignorance and blindness among the justices appear to be part of the court’s history as well.

It is an especially bitter irony that the very institution created to rule objectively on legal matters related to our founding documents and principles has become so deeply partisan that it can no longer be regarded as worthy of our trust. And in this case, the partisanship and untrustworthiness can be laid directly at the feet of the six on the right.

During election season, Democrats have never focused on the importance of the Supreme Court. That has to change. We need to convince people that the only way to keep cruel and corrupt judges and justices off the bench is to elect politicians who refuse to nominate and confirm them. It would also help if we start making the case for expanding the court. Otherwise it’s going to keep getting worse.