THE DESTRUCTION OF THE SUPREME COURT AS A REVERED INSTITUTION OF AMERICAN DEMOCRACY

The takeaways from this post are that:

·         The U.S. Supreme Court’s status as a revered institution of American democracy has been destroyed by the actions of the six radical, reactionary, right-wing justices.

·         There are strong reasons to question the impartiality of three of these justices, Thomas, Gorsuch, and Chief Justice Roberts, on cases that have come before the Court but where they have not recused themselves.

·         Chief Justice Roberts has done nothing to respond to ethical issues or to address the overarching issue of the lack of ethical standards for the Supreme Court.

·         Justice Abe Fortas resigned in 1969 due to an ethical issue far less serious than those in which Justices Roberts, Thomas, and Gorsuch have been involved.

(Note: If you find my posts too much to read on occasion, please just read the bolded portions. They present the key points I’m making.)

The U.S. Supreme Court’s status as a revered institution of American democracy has been destroyed by the actions of the six radical, reactionary, right-wing justices. This is not hyperbole but a statement of fact. They are right-wing, politically-driven, radical, and reactionary individuals engaged in an unprecedented undermining of the legitimacy and credibility of the Supreme Court. They have shown time and again that they have no respect for the Supreme Court as an institution or for its processes and precedents. Another way to put this is that they have no respect for the rule of law. They are not conservative, originalists, contextualists, or any of the other things they and their supporters like to call them. Calling them radical reactionaries is appropriate and accurate as this previous post and the three prior posts it has links to explain.

The most recent scandal, of course, is Justice Thomas’s unethical (to say the least, corrupt would probably be more accurate) relationship with the right-wing, politically active, businessman Harlan Crow. Thomas has claimed – and much of the media has echoed – that there isn’t any ethical issue or reason to question Thomas’s impartiality because Crow hasn’t had business before the Supreme Court. That’s only true in the narrowest of meanings in that Crow hasn’t personally had a case before the Court. Some detail on Justice Thomas’s extensive interactions with and financial benefits from Crow, as well as the conflicts of interest that have been present, will be covered in my next post.

This is not Justice Thomas’s first serious ethical violation to come to light. In 2011, he amended 20 years of annual financial disclosure forms to include the sources of his wife’s income, including right-wing political organizations that had been involved in cases before the Court. [1] Thomas didn’t recuse himself from those Court cases nor from cases involving efforts to overturn the 2020 presidential election even though his wife was involved in those efforts.

The media recently reported that Justice Gorsuch, another of the radical reactionaries, sold a piece of property nine days after being confirmed to the Supreme Court. He shared ownership of the home and land, which sold for $1.825 million, and received between $250,000 and $500,000 from the sale. He did report the transaction, but surprisingly did not disclose the buyer, who was the CEO of the law firm Greenberg Traurig that has been involved in at least 22 Supreme Court cases since then. Gorsuch’s failure to disclose the buyer is surprising both because it’s clearly required and because he did report the names of those who gave him a fishing rod, a painting, and a pair of cowboy boots. [2]

A scandal hiding behind the Thomas and Gorsuch scandals, that in some ways is even more serious, is that Chief Justice Roberts has done nothing to respond to these scandals or to address the overarching issue of the lack of ethical standards for the Court. He has stonewalled requests from Congress to provide information and to establish binding ethical standards for the Court. He has failed to take any public action or to make any public statements to address the scandals. His previous apparent concern for maintaining the legitimacy of the Court appears to have lapsed or to have been overwhelmed by his inability to control the three extreme justices appointed by President Trump. His lack of leadership will presumably go down in history as being a major contributor to the destruction of the Supreme Court’s credibility, legitimacy, and revered status. (See this previous post for more detail on Chief Justice Roberts failure to address ethical problems at the Supreme Court and in the federal judiciary more broadly.)

By the way, Chief Justice Roberts has his own ethical problem in that his wife is a legal personnel recruiter for law firms that appear before the Court. It was recently revealed that between 2007 and 2014 (Roberts has been on the Court since 2005) she received over $10 million in commissions with at least hundreds of thousands of dollars of that coming from firms appearing regularly before the Court. [3]

Judicial rules that apply to the Supreme Court require justices to recuse themselves “in any proceeding in which [their] impartiality might be questioned.” Clearly Thomas, Roberts, and Gorsuch have failed to abide by this rule.

Although there aren’t rules that require resignation and the only standard in the Constitution for justices is that they exhibit “good behaviour,” there is a precedent for resigning based on an ethics issue. In 1969, Justice Abe Fortas resigned because he had accepted $20,000 for advising the family foundation of Louis Wolfson, a financier who subsequently went to prison for stock fraud. Fortas insisted that there was no wrongdoing – and there was no evidence of anything corrupt – but that he was resigning to protect the reputation of the Court and to spare the Court from controversy. Fortas had terminated his relationship with the foundation in June 1966, less than a year after it had begun, when he decided he didn’t have time to work for the foundation given the workload at the Court. He had returned the $20,000 in December 1966 after Wolfson was indicted in September and October 1966. The relationship with the foundation and the original payment were disclosed in May 1969 and Fortas resigned 11 days later. [4] (Note: $20,000 in 1966 would be around $185,000 today, adjusted for inflation.)

Clearly, Fortas resigned for an ethical issue far, far less serious than the ethical issues Justice Thomas is involved in, and also less serious than the ethical issues in which Justices Roberts and Gorsuch are involved. Nonetheless, there were bipartisan calls for Fortas’s resignation and talk of possible impeachment from members of Congress, despite the fact that his resignation allowed President Nixon to tilt the balance of the Court in a more conservative direction. If Thomas doesn’t resign, impeachment would be appropriate, however the political partisanship in Congress means this won’t happen.

[1]      Kaplan, J., Elliott, J., & Mierjeski, A., 4/7/23, “Clarence Thomas defends undisclosed “family trips” with GOP megadonor. Here are the facts.” ProPublica (https://www.propublica.org/article/clarence-thomas-response-trips-legal-experts-harlan-crow)

[2]      Wilkins, B., 4/25/23, “‘So blatant’: Gorsuch failed to disclose he sold home to CEO of major law firm,” Common Dreams (https://www.commondreams.org/news/neil-gorsuch-colorado-home)

[3]      Schwartz, M, 4/28/23, “Jane Roberts, who is married to the Chief Justice John Roberts, made $10.3 million in commissions from elite law firms, whistleblower documents show,” Business Insider (https://www.businessinsider.com/jane-roberts-chief-justice-wife-10-million-commissions-2023-4)

[4]      MacKenzie, J. P., 4/17/23, “The Supreme Court justice who resigned in disgrace over his finances,” The Washington Post