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The Court Can't Heal Itself, Part 2.
The branch of government that depends most on trust cares least about preserving it. Now it's up to Congress.
This is not Samuel Alito. Instead it’s an image of Pompeia, the second wife of Julius Caesar and the inspiration for the line that “Caesar’s wife must be above suspicion.” And by extension, that people in positions of authority should anticipate questions about their probity. If Alito himself and other members of the U.S. Supreme Court lived by that principle, the Court might not need outside supervision. But they don’t, so it does. (Library of Congress image.)
Here is my view about “disclosure”:
—If there is anything about you that people might find relevant if they learned it later on, you should let them know ahead of time.
—By the way, I never call this “full disclosure.” Nothing’s ever complete or full. Instead I say, “For the record.”
So whenever I write about something with which I have a non-obvious connection, I take pains to make that clear up front.
For instance: If I’m doing a big story about U.S. party politics, at some point I’ll mention “for the record” that I once worked for a Democratic president. If I’m recommending a book or magazine article, I’ll make it clear if I know the author. When Deb and I write dispatches for the Our Towns project, we note who is supporting our reporting and travel.
You get the idea.1 I have an absolutist “no surprises” approach when it comes to disclosing anything the audience might possibly find significant later on. The test is not whether you, personally, think your judgment might be affected. It is whether someone else might have wanted to consider the info.
And remember that this is for my own, non-consequential writing—which at most might affect how someone thinks about an issue, but which has zero legal or direct economic impact on anyone else. Perhaps I make these disclosures out of vanity: I’m afraid that if I hide some conflict and a reader later finds out, I’d look worse in the long run. But it’s a rule that I and many other writers observe.
How different this is from the Supreme Court.
The most powerful, least accountable figures in public life.
Here’s a summary of the paragraphs that follow:
The nine lifetime-appointees on the US Supreme Court have more individual power than anyone else in US public life.
Yet those nine members are under fewer formal controls on their ethics and possible conflicts than any (and I stress any) other federal official or employees, including those with purely clerical or administrative duties.
The legitimacy of the Court therefore depends on the rest of us believing that those we trust with power are trustworthy.
The current Court has shown that it is not.
Therefore it is time for outside intervention, and supervision.
Now, more details.
Checks and balances as a bedrock of modern life.
Virtually every other important role in modern life is subject to outside checks and scrutiny. Doctors have review panels. Corporate officials must answer to boards. Elected officials must answer to the voters. These safeguards are imperfect, but they’re something.
They apply within most of the judiciary as well. Every member of the federal judiciary except those nine on the court is subject to ethics laws and disclosure requirements. But until now, these nine have asserted that they—uniquely among humanity—should answer to no authority beyond what they deem right themselves.
Some people might have believed in this before. But human experience suggests its pitfalls. For instance, many people once believed in self-regulation of a beyond-reproach clergy.
In the Thomas-Alito era, no sane person can believe that the Supreme Court is an exception to the lessons of all other human experience. Individual members of the Court plainly won’t live by the “Caesar’s wife” standard. And the Court’s only internal “authority,” in the form of the Chief Justice, plainly lacks the power to enforce any standards.
The Court won’t impose any limits, standards, or self-criticism on itself. So someone else has to.
What is odd about the Court.
The nine members of the Supreme Court wield more individual power, less accountably, for a longer period, than anyone else in our public life.
A serving president of course out-powers any other individual. But presidents are subject to re-election or impeachment. They are dissected in the press every day. Even for the most dominant, their time in command is limited.
The Supreme Court, by contrast? If even one of the five lifetime appointees who decided to stop the Florida recount in 2000, and thus award the presidential election to George W. Bush, had voted differently, tens of millions of lives would have changed.
The disastrous Iraq War would probably never have happened.2 The Supreme Court itself would presumably have had a lastingly different makeup. George W. Bush ultimately appointed John Roberts and Samuel Alito. Without the Bush v. Gore ruling, who knows who might have held those seats? The most recent Democratic president to appoint a Chief Justice was Harry Truman, in 1946. The most recent time the Court had a Democratic-appointed majority was at the end of Lyndon Johnson’s administration, before 2/3rds of today’s Americans were born.3 Since then, Republican presidents have appointed 13 justices; Democrats, five, although the national vote has gone strongly for Democrats in that time. This chanciness—of longevity, of circumstance—is something only a very lucky country could endure.
The Voting Rights Act? Without Bush v. Gore, it would still be in effect. Roe v. Wade? Similarly. For Shelby County
Citizens United, John Roberts might have been a lonely dissent rather than writing the majority opinion to undo the Voting Rights Act—although, without Bush v. Gore, he might never have been on the court at all.
Sandra Day O’Connor, Anthony Kennedy—if either of them, the supposed “swing” votes on the Court, had gone the other way in 2000, Al Gore would presumably have been sworn in. Then George W. Bush might have fulfilled his dream of becoming commissioner of Major League Baseball, and history would have followed a different gyre.
Either one of those people, Kennedy or O’Connor, had that power in his or her hands.4
The other 330 million of us in the American public will never come close to that power. For the three million people in the federal work force (except the SCOTUS nine), the same. Yet virtually all of us live under tighter rules of ethics and behavior than did those two—and the nine people now empowered on the Court.
Alito and Thomas move us past the delusions.
To their credit, both O’Connor and Kennedy seemed to recognize that if they were to be shielded from outside scrutiny, they should act is if rank carried responsibility. O’Connor, who is now 93, left the Court for family reasons (an ailing husband) in her mid-70s. She resigned knowing that her seat would be safely in Republican hands. The same George W. Bush she had brought into office appointed her successor, who turned out to be Samuel Alito.
Anthony Kennedy, who is now 86, did the same, resigning in his early 80s while a Republican, Donald Trump, could appoint his successor—who turned out to be Brett Kavanaugh. Both Kennedy’s resignation and Kavanaugh’s nomination brought up their own financial-disclosure issues. (For Kennedy: whether his son, a banker, had any unusual dealings with Donald Trump. For Kavanaugh, inter alia: whether there was something fishy about how he ran up, and then quickly paid off, very large credit card debts.)
On these points, we may never know, since Supreme Court members, unlike the millions of other of federal employees, are not subject to ethics laws or disclosure requirements.
What we know, beyond the details of any of these cases, is that the Court cannot be trusted to regulate itself.
We recognize that truth about most of humanity: it’s the reason that auditors exist, and that people ask for receipts in stores, and that the Founders came up with “checks and balances.” The Supreme Court has asserted its unique exception to these rules of life.
What a ‘reasonable’ person would think.
We know about the shameless Clarence Thomas, as chronicled here.
For Samuel Alito, the very most fatuous part of his pre-rebuttal in the Wall Street Journal to a ProPublica expose was that no one would have “expected” him to disclose his fishing trip to Alaska on a billionaire’s private jet, because no one could imagine that it created any confict. As he put it:
“There is an appearance of impropriety when an unbiased and reasonable person who is aware of all relevant facts would doubt that the Justice could fairly discharge his or her duties.” .. No such person would think that my relationship with Mr. Singer meets that standard.
As the kids would say, GMAFB.
This is the Emperor’s New Clothes. This is the smug delusion of a superior hearing “Great point, boss!” from his underlings.
—Any unbiased and reasonable person would think that Alito should have disclosed this involvement at a minimum, and probably recused himself from all the (many) later decisions involving Singer.
—Every such person who worked in any other capacity for the federal government would have been forbidden to accept this trip, because of the reality or mere appearance of possible conflicts.
Humble example: As a White House speechwriter, I had to carefully pay my share of any lunch-tab or beer-costs when I went out to see other people. I could not “appear” to have any conflict— and this is when I was in my 20s, and had no power over anyone else.
Any “unbiased and reasonable” person knows that what Alito claims is preposterous. Every such person deals with different expectations in their daily work.
And this is the person whose “judgment” is supposed to determine how tens of millions of people decide their family futures, on how corporations should shape political races.
It’s up to the Congress.
The Supreme Court relies on trust, and has incinerated its trust.
Its Chief may lack the will, and certainly lacks the power, to do anything to save the Court.
There is no remedy but the Congress. Thus I pay attention to Senator Sheldon Whitehouse and others. The “crisis of the courts” is that this court has failed. It needs outside help, from the rest of us.
To pile on: Whenever I wrote about Google during its first two decades of existence, I made clear that its then-CEO, Eric Schmidt, and his family had been family friends of ours since long before his Google era. For instance, here. Whenever I write about Esri, the geo-spatial info company based in Redlands, California, I make clear that I’ve known its founders and owners most of my life, and have done some cooperative projects with them. Do any of these connections “matter” in what I write? I don’t know. But I don’t want someone to “unveil” this later on.
I can’t make this point often enough: Among “mainstream” politicians, the earliest and most prominent to declare the impending invasion a disastrous mistake was Al Gore himself, in a speech at the Commonwealth Club of California six months before the invasion began. (And nearly two years after Bush v. Gore.) If he had been president: Dick Cheney would not have been vice-president (though Joe Lieberman would), Donald Rumsfeld would not have been Secretary of Defense, Paul Wolfowitz would not have been deputy SecDef, and the skein of history that began with the invasion would have taken a different course.
As a “for the record” point: Democratic candidates have won the national vote in seven of the past eight presidential elections. That’s all of them starting in 1992, with the lone exception of George W. Bush’s re-election victory over John Kerry in 2004. [For the record, the rest are: Bill Clinton in 1992 and 1996; Al Gore in 2000; Barack Obama in 2008 and 2012; Hillary Clinton in 2016; and Joe Biden in 2020.]
The total vote for Democratic U.S. Senators has been larger than that for Republican Senators ever since 1996. Of course that is not how control of the Senate is determined. But combined with the pattern in presidential races, it is a striking contrast with the makeup and political center-of-gravity of the current Supreme Court. Of its nine sitting members, six were appointed by Republican presidents—including three by Donald Trump.
Why am I not mentioning the other three votes in favor of the world-changing 5-4 Bush v. Gore decision? It’s because they were seen as partisan “locks”: Chief Justice William Rehnquist, plus Antonin Scalia and the still-present Clarence Thomas. For O’Connor and Kennedy this is the peril of being seen as “unpredictable”: extra scrutiny on the difference they could have made.