Earlier generations of Supreme Court justices appear to have had the capacity for shame.
In 1969, Judge Abe Fortas resigned for accepting (and returning) $20,000 in consulting fees from a foundation headed by a man convicted of securities fraud.
No matter what Judge Fortas believed about his honor and morals, the Supreme Court is an inherently weak institution, and its nine justices cannot tolerate even the slightest whiff of bias or corruption. I understood that I couldn't do it. As the Times Editorial Board wrote at the time, “not only must a judge be innocent of any wrongdoing, he must also be above reproach.” Judge Fortas resigned, putting the interests of the court and the country ahead of his own.
Such humility is nowhere to be found on today's courts, and the court is finding new ways to embarrass itself, largely due to two of its most senior officials: Justices Samuel Alito and Clarence. -This is due to the brazen actions of Judge Thomas, and both judges are making a mockery of their duties. At least to appear neutral and independent. They do not report large gifts, lavish vacations, payments to family members from wealthy donors, at least one of whom has business with the court, expresses overtly partisan views, or spouses. It is impossible to maintain an appropriate distance when someone expresses such an opinion.
In effect, they are saying that they don't care if these things bother you or not. Recent polls show that the Supreme Court's public approval ratings are near record lows, and this is worrying millions of Americans. But no one in Washington seems willing to take action.
That can't continue. The court's refusal to police itself, and its willingness to allow a small number of judges to trample on its reputation, calls for Congress to step up and take stronger steps to enforce judicial ethics. It also requires judges to recuse themselves if there is or appears to be a clear contradiction. interest.
The latest in a long list of examples became public last week: The Times reported that an upside-down American flag had flown in the front yard of the Alito family home shortly after the Jan. 6 riot instigated by then-President Donald Trump. The flag, an apparent pro-Trump statement widely displayed by people who believe the 2020 election was stolen, was apparently not hung for several days, even while the court was considering whether to hear a case challenging the election's results. (The court decided not to hear the case; Justice Alito, like Trump, sided with the loser.)
In a statement to the Times, Judge Alito placed responsibility for raising the flag in response to a dispute with some neighbors on his wife, Martha Ann Alito. He did not say anything about the attempted takedown, nor did he apologize for the apparent ethical violation. On the contrary, he has not been able to recuse himself from any of the several January 6th-related cases currently before the courts. That includes Mr. Trump's claim that he has absolute immunity from prosecution for his role in the storming of the Capitol.
Judge Thomas could be more compromising when it comes to January 6th. His wife, Ginny Thomas, actively participated in legal efforts to overturn the election and keep Trump in power. Still, he also refused to recuse himself from the Jan. 6 case, with one small exception.
Other judges have also recently revealed political bias. In 2016, the Times editorial board criticized Justice Ruth Bader Ginsburg for calling Trump a “fake,” and she quickly expressed her regret. It was the right response, but it didn't ring a bell.
As you know, federal law states that “a judge, magistrate, or magistrate of the United States shall be disqualified from any proceeding in which his or her impartiality may reasonably be called into question.'' ” is clearly defined.
The case of January 6th should not have been rejected. At the very least, reasonable people question Justice Alito's impartiality based on his failure to lower the flag, especially during a time of intense national conflict over the issues that were before the justices at that moment. It is legitimate to present this.
Judge Thomas' extreme closeness to his wife (he describes them as blending into “one being”) raises similar questions about his capacity for impartiality. He also cited another section of the law that requires judges to recuse themselves if their spouse is “to the judge's knowledge likely to be a material witness in the proceeding.” That certainly sounds like Ginny Thomas, who testified before a House committee on January 6th under threat of subpoena.
In short, Justices Alito and Thomas appear to be violating federal law, undermining the court's legitimacy in the process. The question is whether anyone will try to do something about it.
“If there is no recusal in this situation, if a judge is holding up a banner supporting a violent insurrection while presiding over a case involving an election theft scheme, then the recusal law becomes a dead giveaway. ” Alex Aronson, executive director of the justice reform group Court Accountability, asked me.
That's a fair question. The Government Ethics Act requires the Judicial Council, chaired by Chief Justice John Roberts, to refer cases to the Justice Department where it has reason to believe a judge intentionally broke the law. The attorney general doesn't have to wait for referrals, but after seeing how Merrick Garland's Justice Department handled the investigation into President Trump, I'm not holding my breath.
The recently adopted Code of Ethics by the Supreme Court also doesn't help much. On the contrary, it would make matters worse, undermine the authority of existing law, and give judges even more leeway to act with impunity.
In a speech earlier this year, Mark L. Wolf, a senior U.S. district judge in Massachusetts who previously worked for Gerald Ford's Justice Department, said that upon adopting the code, “the Supreme Court has decided that if not the right, then the essence… In other words, he claimed the following authority: Disobeying the laws enacted by Congress and the President. Therefore, this norm undermines the system of checks and balances that protect our constitutional democracy, threatens the impartiality of the Supreme Court, and jeopardizes the vital public trust in the federal judiciary. ”
Chief Justice Roberts may not have the power to force his colleagues to do the right thing, but he does have moral and institutional authority. But the new code of ethics seems no match for the old Omerta that has bound justices for generations. As the Times reported, the Alito flag case was quickly brought to the attention of the court (ranking court employees are barred from any political activity, even down to displaying bumper stickers), but it was still kept under wraps for more than three years.
For now, Democrats control the Senate but remain largely silent, relying on sending letters of warning.
On Monday, Senate Judiciary Committee Chairman Richard Durbin went on another rant, calling on Judge Alito to recuse himself from the Jan. 6 case, but he ruled out taking any further action. Mr. Durbin held the hearing and said he “doesn't think there's much to be gained.”
Perhaps he and other Democrats were spooked by Justice Alito's shocking claims about Congress' power in the Wall Street Journal last year.
“No provision in the Constitution gives us the power to regulate the Supreme Court — of course,” he said. This would be surprising to the Founding Fathers, who didn't say that. Instead, from the beginning, Congress has regulated the court's size, salary, jurisdiction, ethical obligations, and more.
We are faced with completely unacceptable conduct by the most powerful judge in the nation. At least Congress has the power to reveal the facts, name and shame the wrongdoers. This is both a truth-seeking mission and a public service, showing the American people just how corrupt some judges are.
So what is Congress so afraid of? The commission can and should hold public hearings and subpoena witnesses to answer questions before the public. They can subpoena Justice Alito himself. If he refuses to meet, summon his wife. After all, he did implicate her, and she certainly has no claim to her separation of powers. He then subpoenaed Chief Justice Roberts, who refused to testify when asked politely last year. If he still doesn't show up, Congress must remember that Congress has the power of the purse to cut funding for things other than court security.
As right-wing activists understand about tenure-track organizations, it's all part of the long game. Justices Alito and Thomas may be in their mid-70s, but a new generation of even more extreme and partisan activists is now emerging. Many were appointed to Congress during Trump's first term, and many more are certain to serve in his second term. These men and women will see the lack of meaningful action in Congress as a carte blanche to run roughshod over ethical norms.
This is as much about the past as it is about the future. Young Americans voting for the first time this year were born after Bush vs. Gore. Some weren't even in high school when Sen. Mitch McConnell took the Supreme Court seat from Barack Obama. As far as they know, that's what the courts have always been and always will be.
So now is the time to show future generations that this country needs courts they can trust to be fair, courts with judges they can hold to shame. The Supreme Court is an institution on which we depend as much as it depends on us.
