Ethics?! We Don’t Want Your Stinking Ethics Rules!!!

Ethics?! We Don’t Want Your Stinking Ethics Rules!!!

With Love and Cavalier Disrespect – Your Friendly Neighborhood US Supreme Court, Powered by MAGA

Without exception, there are zero autocracies on earth with independent law enforcement and a genuine and fully independent judiciary to administer a system of checks and balances (with power) against the other branches of government. And for autocrat wannabes, their first plan of attack, as they move to concentrate their power, is almost always to disable, or render subservient, law enforcement and judicial power. We can see where it has happened in Russia, China, Hungary, Turkey, Venezuela, etc. and where it is currently happening in Israel, India, Mexico and, well, if MAGA has its way, the United States of America.

Given what’s happening here, our Founding Fathers are likely spinning in the graves… at very high speeds. All federal justices, in every court, are nominated for office by the President of the United States, subject to confirmation by majority vote in the US Senate. All federal justices so designated are likewise subject to a stringent cannon of ethics that govern their disclosure obligations, how conflicts of interest must be determined, what neutrality requires, permissible sources of outside income, what decorum they must adhere to, etc, etc… Oh, except for disclosure, one US court is exempted from those ethics… subject to removal from office only by impeachment in the House of Representatives and trial in the US Senate: the justices of the United States Supreme Court.

Given the polarization of just about every branch of government these days, you might surmise that a highly unethical Supreme Court justice who reasonably consistently rules with consistent partisanship isn’t going to be removed from office by a Congress where the favored political party can block that removal. And you would be right. The most egregious Supreme Court recipient of substantial economics values – Associate Justice Clarence Thomas (expensive vacations, a tuition subsidy for a family member to a substantial subsidy of a luxury motor home, a little real estate razzle-dazzle resulting in a sale of property with a right for a family member’s continued rent-free occupancy… all gifted by mega-wealthy GOP supporters led by rightwing real estate developer Harlan Crow). The estimated value of all that: an aggregated at a worth of around $2.4 million. Hints of beneficial deals for Justices Brett Kavanaugh and Neil Gorsuch have surfaced as well.

As for clear and obvious bias, we have Justice Clarence Thomas’ wife active in urging the Trump White House to pursue vigorous “stop the steal” activities and generally supporting activists (I’m being polite here) being aggressive with their protests. Add to that, clear expression of bias from Samuel Alito, for example, as with an upside-down American flag hanging outside his house – a pretty standard modern use of that gesture as a “stop the steal” statement – and “An Appeal to Heaven” flag outside his beach house – a rather clear white Christian nationalist banner. Alito blames his wife for these expressions even though he walked by them… a lot. Hey, Sam, I thought hiding behind your wife’s skirts was considered radical leftwing “woke.” See also my recent The Supremes? and Replacing the Constitution with White Christian Nationalist Mandates blogs for more details and some visuals.

The notions of inappropriate sexual behavior have also haunted conservative Supreme Court nominations for decades. During confirmation hearings regarding Clarence Thomas’ 1991 nomination to the Court, Anita Hill testified that Thomas had sexually harassed her while she worked with him at the Education Department and Equal Employment Opportunity Commission. Hill said Thomas frequently asked her out on dates and described his sexual interests to her. Decades later, in 2018, at confirmation hearings, Christine Blasey Ford, a then a Standford psychology professor, accused Supreme Court Justice Brett Kavanaugh of sexual assault when they were high school students. After Hill’s testimony, the FBI did a cursory investigation producing insufficient evidence to pursue the inquiry. After Ford’s testimony, the FBI refused to interview credible witnesses who supported her claims. Obviously, both nominees were confirmed.

We can also look at the rightwing justices’ tricks of the trade. Exemplified by ultra-conservative Justice Antonin Scalia in his “guns are fun for everyone” Heller vs DC (2008) opinion in which he outlined how the constitutional provisions and the amendments must be interpreted only in accordance with the surrounding societal norms at the time. So, Second Amendment cases dealing with semiautomatic assault rifles (like the AR-15) can only apply the then-existing laws for flintlocks and muskets. It’s called originalism, and it turns Supreme Court justices into researching historians, pretty much able to find historical support for almost any decision they want to reach. Scalia’s law clerk, Amy Coney Barrett, is now herself a Supreme Court justice, who also practices originalism. The Roberts Court will most certainly go down in history, way down.

What I am describing above is a rogue Supreme Court making highly biased rightwing partisan decisions, rather clearly laying the path for an autocrat hell-bent on coopting law enforcement and ensuring the Court follows his wishes… free and clear of any ethical guardrails. And when Congress attempts to address the unethical “bribes and biases R Us” trend in Supreme Court justices, guess who is equally hell-bent to keep ethics and the Supreme Court at a safe distance apart? Writing for the May 11th NBC News, Zoë Richards, Sahil Kapur and Frank Thorp V tell us about a failed Democratic Senate effort last July to add the same kinds of ethical requires that other federal judges face to the Supreme Court, which was recently resurrected as the news about further unethical Supreme Court behavior filled the news:

“Senate Majority Whip Dick Durbin, D-Ill., who chairs the [Senate] Judiciary Committee, said earlier Tuesday [5/11] that he would make a unanimous consent request to pass Supreme Court ethics legislation that the panel advanced last July… Sen. Lindsey Graham, the top Republican on the Judiciary Committee, plans to block an effort by Senate Democrats to unanimously pass a Supreme Court ethics bill Wednesday on the Senate floor… ‘I will object,’ Graham, R-S.C., told NBC News… Graham's objection means the bill won't be able to move forward, because any senator can block a request.” Perhaps someday. But at least all those MAGA senators are on record, championing a Court with no ethical restrictions.

Meanwhile, the MAGA House majority is trying to take control of our federal judicial system – a la Israeli PM Benjamin Netanyahu’s efforts to allow his legislature to override that nation’s highest court – by requiring the US DOJ prosecutors to testify and spill their prosecutorial materials to MAGA members of the House who want vengeance for the cases against Donald Trump. On May 12th, the House of Representatives voted along party lines, 216-207, to hold Attorney Merrick Garland in contempt for withholding the audio recording of President Joe Biden’s interview with special counsel Robert Hur over his mishandling of classified documents. Garland is now the third attorney general in U.S. history to be held in contempt.

I’m Peter Dekom, and while for most voters who are concerned and focused on the “democracy vs autocracy” battle in the upcoming presidential election, they just might be missing the shock troops within Congress and the Supreme Court who have already begun that Trumpian transition.