I laud your intent in arguing for the need of ethical guidelines. Let me be clear from the Start. I believe Dobbs to have overreached and I think Justice Alito's argument to have gone far beyond the boundaries of originalism and to be much more an example of judicial activism see below*. My problem is with what those requirements or guidelines might look like and with how they might be enforced. First, however, you fail to mention that there is currently in place another stick that may be used. Impeachment. While only one Justice, Samuel Chase, in 1805, has ever been impeached by the house, and was acquitted by the Senate, Iit is nonetheless a constitutional guardrail already in place. Art 1 sec 2 and Art 2 sec 4 US Constitution. And yes it is, as it should be, a very high bar to vault, if it were to be used.
And before I proceed with enumerating what I see as problems with proposed solutions to the perceived problem of influence and unethical behavior I want to offer an insight into The Chief Justice's so-called indifference to this. First 5. The number needed for a majority decision. As a matter of practice and not principle The Chief when adopting his policeman's role needs be very careful not to alienate the votes needed for a ruling. Second >5. Given the already balkanized condition of the polity the larger the majority the better. So again the need to step softly. e.g. The ACA ruling (7-2). I would also argue that Roberts worked hard, but failed, to restrain Alito's Dobbs opinion. This is not a failure or argument against the institution of the the Court itself or its current composition (neither is the current composition of the court an argument in favor of more regulation). Process is a necessary condition of legitimacy but is by no means a sufficient condition or a guarantee of a correct ruling The Constitution itself is the only foundation on which to ground a ruling. One can argue that a ruling is constitutional in its process yet at the same time a complete misunderstanding of that very Constitution. Any attempts at assuring correct rulings are in fact subversive of our constitution and its foundation which is the realization and argument that sovereignty derives from the citizenry because of our status as free and autonomous being while at the same time along recognizing that majority's are not infallible but can be tyrannical and while minorities need protection they are also not infallible hence the need for an arbitration by a third arm of government. *I offer Brown v Board as the other side of the coin of the the Dobbs ruling as an example of a "constitutional decision". It was in fact far ahead of and in defiance of the majority of the country it was however, on a firm constitutional ground whereas Dobbs strays far from a constitutional foundation despite and because of Alito's tortured historical arguments. Yet both rulings are constitutional.
Now back to what some type of ethical oversight might look like or why it would accomplish its goal of achieving a more fair and just Supreme Court. The criticism leveled against Thomas and Alito is that their association with wealth and their acceptance of gifts in kind and in funds as alleged against Justice Thomas not only lends an appearance of corruption but in fact lead to unjust opinions. If this in fact is the case where or what would be the proof? I think that would be a hard thing to prove and what for example is the difference between this association with wealth and the effect on one's opinions than say an Ivy league education ( with the exception of Justice Barred all are either Harvard or Yale Law greduates, or growing up in a well to do family? Or how does the fact that 7 of the current Justices are Catholic influence their interpretation of the Constitution? Maybe the Justices in exchange for their office be cloistered? Would it matter what their reading is, or what newspapers they may read? Or who their friends are and what are their political positions. When it comes down to it I think much of the concern here is less about the money and more about the content of the rulings. There's certainly jsut as much money on the left aimed at PACS, Politicians, Foundations, and so forth. I think it prudent to require transparency from the Justices in reporting monetary and gifts in kind. Not as a means of preventing influence but rather in the name of honesty and transparency. My guess is that the more liberal Justices were required to list such items it would be in the same monetary ballpark as the other Justices. In the end the Supreme Court and in somewhat the same vein the Electoral college are institutions and processes designed by the founders and ratified by the States to protect us from our darker selves and to promote and encourage our better nature. Without them we'd be much the worse. I'm reminded of a quote from Jefferson Davis, in Shelby Steele's Vol 1 The Civil War: “Revolutions develop the high qualities of the good and the great, but they cannot change the nature of the vicious and the selfish. “
Thank you for this detailed and erudite response. I genuinely appreciate it.
On one specific point: Yes, as mentioned in another comment-exchange, I do realize that in principle Supreme Court justices can be impeached. As you point out, the reality that no Justice has been impeached in more than 200 years, and that no one has been convicted-and-removed ever, makes this seem a theoretical rather than realistic factor. But I'll take care to mention it.
I'm grateful for your explaining how vote-counting looks from a Chief Justice's point of view. Someone has probably done a book about how this kind of "leadership," of a group over which a CJ has zero direct control, has worked over the years — compared, say, with the role of a Speaker of the House, or Senate Majority Leader. (Each of whom, again, has no *direct* control over the members, but has different electoral imperatives.)
On whether Alito, Thomas, etc would have voted any differently if they had not befriended Singer or Crow: I agree that they probably would have voted just the same way. The point to me is the *transparency* — or, rather, the hubris in thinking that they, uniquely, should not be subject to any inspection or disclosure.
Would I have written the same things about Google or Esri if I had not been friends with the founders / CEOs? Probably so. But people are notoriously bad judges of their own probity. Alito and Thomas are taking a "how dare you!!" response to anyone questioning whether they might even conceivably be influenced by gifts and connections. My policy is: Let your audience know, and they can judge for themselves.
And of course this is just for an "audience" — rather than for a "citizenry," since I (like all writers) have zero direct control over anyone else. Supreme Court justices, on the other hand.
Again I am sincerely grateful for your care in exposition.
I concur. The power of the Supreme court in our republic is unmatched and no matter how many ways you slice it is, essentially undemocratic. However, if the other two branches which are representative and more democratic would actually function, via compromise and pragmatism, rather than the ideological posing and feces throwing that seems to be their current metier than the Supremes would not be weighing in so often or so divisively. Madison in Fed 51 made this point much more eloquently over 200 years ago, referring to the need of "a will independent of the society itself."
"In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. "
On the other hand, I think three of the most disruptive modern-era rulings are (important) exceptions to that rule — cases in which the court decided to get in the middle of controversies that were not the result of legislative/executive branch paralysis or polarization.
I am thinking of:
— 'Shelby County,' which (as you know) in effect undid a lot of the 1965 Voting Righs Act;
— 'Citizens United,' which (in my opinion) amounted to legislating from the bench, with enormous effect;
— 'Dobbs,' which gratuitously upended half a century of seemingly "settled" law, in an area where individual opinions obviously differ dramatically, but in which 'Roe' had seemed to represent the established compromise.
In my view, with all the stipulations and priors ("I worked for a Democrat") you are aware of, a huge proportion of today's controversy over the Court arises from (a) those three decisions, and (b) the complete indifference to appearance, transparency, "Caesar's wife," and so on by Thomas and Alito specifically and their colleagues in general.
I want to reply in full in a few more days as life is getting in the way right now,(I agree on the 3 rulings being poor and just plain wrong constitutional interpretation.) but I quickly want to offer the Moore V Harper ruling 6-3 as the type of non- ideological compromise the Chief Justice can bring about. TTFN
Can you elaborate further on this? I don't follow:
"U.S. Senators representing Democratic votes have outnumbered those representing Republicans ever since 1996. This is calculated by summing the votes for Democratic senators, versus those for Republicans, in each year’s election."
Some elections more Dem Senators than GOP Senators are elected, some elections fewer, right?
— IF you took all the votes cast in an election year for Democratic Senate candidates, and compared them with all votes cast for Republican candidates, since 1996 the Democratic total would be larger.
—- ALSO if you imputed to Senators the "representation" of their states — each US Senator from, say, California would notionally represent 50% of those 39 million people, and with a divided state each Senator would represent half — then also for several decades the Democrats have "represented" more people.
Obviously the Senate doesn't work this way. But it's an interesting measure.
Absolute power corrupts absolutely. The supremes are human people, no matter what they'd have us believe. Term limits. Real, bipartisan vetting. Oversight. Mandatory political balance through mandate or numbers. Some system of appeal that works within the Constitution. Anything but what the Court has become.
The Court has a long history of controversy about and distrust in its decisions. E.g., its defence of slavery, dislike of the New Deal, subsequent embrace of desegregation, abortion and gun ownership and baseless intrusion into a presidential election. . But, distrust of the probity of its individual members has been rarer, until now. The arrogance of Thomas and now Alito, the weakness of Roberts, it’s Chief Justice, all happening together, completes the growing distrust in the other two branches of our central Government, both Congress and the Executive. This is a crisis both domestically and internationally, adding to the long decline in the U.S. standing as a democracy and its values. Whether the voters of the United States, 75 million of who, sought four more years of Donald Trump as president, can constructively address this crisi, seems improbable. The U.S. is in a mess. Whether the eloquence of Jim Fallows and other voices in the media can help resolve the mess is by no means certain. But, they must try.
I agree that the Court's current collapse of moral standing has the potential to be a genuine problem-of-governance, as if we needed any more of those.
The public figure I'm following most closely on this is Sheldon Whitehouse. In practical terms, for reasons you allude to, it is going to be nearly impossible to enact reforms like those he is working on — or others from groups like Fix the Court ( https://fixthecourt.com/ ) or the American Academy's 'Our Common Purpose' report a few years ago. But, as you say, it matters that they continue to make the case, and that we all try.
It isn’t clear that Gore would have won had the counting proceeded. The court should not have taken Gore’s appeal on the grounds that he had raised a political question. Had the issue gone to the House Bush would have won.
Andy, as always, fair and astute points. 100% agree about the outcome in the House. And it's not ever fair (though it is often interesting) to run "what if?" mental experiments about history unfolding along different paths. For instance, what if James Comey had decided to keep his thoughts to himself ten days before the 2016 election? What if Anthony Weiner had not been such a .... jerk.
I'm sure you're aware of this, but I often think about the dissent in Bush v. Gore by the great John Paul Stevens. Its conclusion (for the record):
"The [ruling] by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land....
"One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law."
Jim I share your disgust that the Supreme Court today should be called the STENCH COURT.
At 89 I have witnessed major oscillations on the Supreme Court. A conservative court was killing important legislation of FDR’s New DeaL [Actually some of the legislation was drafted hastily and badly. Several of the Court’s rejections were 9-0.]
FDR, after a gigantic re-election victory, proposed a Court-packing ‘solution’ to his Court problem. Despite his political power and personal frustration, this was rejected and died a swift death. In subsequent years FDR had the opportunity to select some more progressive justices.
I recall that the appointment of Governor Earl Warren by Ike caused some raised eye brows. He seemed more ‘social’ than judicial in his rulings. He did cajole justices [including a former KKK member] to vote 9-0 in the Brown v. Board of Education 1954 decision that rejected the ‘separate but equal’ decision of 1897.
I sensed that something was out of kilter with the Supreme Court in recent decades. The 1991 vote to appoint Clarence Thomas to the Court was clearly far more political than judicial. Whether on his legal record or on his character, as reflected in the Senate hearing, Thomas had not earned the right of life-time service on the Supreme Court.
Subsequently the Federalist Society, Mitch McConnell, and President Trump engaged in skullduggery to pack the Court with some far-less-than-non-partisan justices.The denial of a hearing for Garland under an absurd McConnell ‘ruling,’ and then his reversal of this absurdity to appoint Bartlett highlighted these judicial jinks.
At one time, I had hoped that Chief Justice Roberts, concerned about the history of the Roberts Court, might be a swing vote on key issues. Unfortunately, now the Court is 5-3 with ‘originalists,’ and Roberts often is not a key figure.
For me, this is compounded by the billionaires who have funneled major goodies to Gina/Clarence Thomas and Samuel Alioto. That Chief Justice Robert’s wife has received fees of over $10,000,000 as a lawyer recruiter, I find smelly.
I strongly belief that the personal ethics of all justices should be beyond reproach. When Justice Abe Fortas displayed poor ethics decades ago, he was obliged to resign.
Sadly, I do not believe that the Constitution, even if both houses of Congress voted to impose ethic standards for Supreme Court justices, permits Congress to impose strict ethics rules for SC justices.
Until or unless a Democratic president and Senate has the opportunity to replace several of the sitting ‘conservative’ justices, there is little that can be done.
My hope (and prayer) is that Clarence and Alioto will realize that their personal ethics sullies the Supreme Court. Another way out hope/prayer is that the current justices will realize that their judicial pyrotechnics violate the soul of present-day America and are opposed to the wishes of a majority of Americans.
More realistically, I am setting a sea anchor in hopes that common sense on the Supreme Court might return after the dreadful hurricane, that commenced in 2010 with Citizens United, has subsided.
This is all very well put. Sincere thanks. (For me, much of the payoff of the early blogging era, and today's Substack version, is being able to engage the wisdom-of-an-informed crowd. So again I appreciate it.)
For reasons you and others have pointed out, the immediate tools-of-change are limited and hard to implement. Reportorially, I'll try to look further into what the practical, feasible, and politically imaginable remedies might be.
I am not a lawyer. I am a constitutional historian who has taught aspects of the. Constitution for nearly 20 years.
The Constitution provides for the impeachment of Supreme Court justices. This has only been initiated once, in the early days of conflict between Chief Justice John Marshall and President Jefferson. The target was Justice Samuel Chase, whose performance was ‘untoward.’ The House sought to impeach him and the Senate did not.
I am unaware of subsequent impeachment initiatives. Since an impeachment would require 2/3 vote in the Senate, it seems extremely unlikely that such would occur except in most extraordinary circumstances.
During the Civil War there was a severe clash between President Lincoln and the Taney Court. On several occasions Lincoln pursued ‘nonacquiescence’ on several Taney Court rulings claiming extreme circumstances.
In the early 1830s President Jackson refused to accept a ruling of the Marshall Court. This posed a major presidency/Supreme Court issue that was solved politically in a ‘nullification’ rejection of John Calhoun and a fudging of a Native American court decision.
I'm reminded that one dissenter in the Dred Scott case, Benjamin Curtis, was the brother of an attorney who argued for Scott's freedom. But no one doubted where the Curtises stood. By contrast, James Buchanan leaned on a fellow Pennsylvanian on the court, Robert Grier, to vote with the five southerners so the decision wouldn't look "regional." Which is worse?
I have no doubt that Alito would have voted Singer's way only 100% of the time, which also makes me wonder why Singer felt the need to buy him off--he must not be the brightest hedge fund billionaire; he should have been offering seats on his plane to Ginsburg and Breyer in hopes of swaying them. But Alito--frankly, not only like Thomas, but also like Scalia before him--appears to think Fux Noise is the revealed word of news, because he sounds, as Thomas does and Scalia did, like they are auditioning for the slot previously held by my publicist, Tucker Carlson.
I did *not* know that about the Curtis brothers in Dred Scott. Thank you.
Agree that votes by Alito, Thomas, and Scalia seem to be "pre-determined," whether or not they went on these trips. But still ....
Also agree that they seem to be creatures of the Fox info-sphere. I believe it was the recent PBS / Frontline documentary on Clarence and Ginny Thomas that said that their exclusive info source was Fox News — plus Rush Limbaugh when he was around. That seems to be the background tone of Alito's writings as well. As I mentioned in the Hannity/Newsom post, that infosphere is so enveloping that it leaves people entirely unaware of counter-arguments or inconvenient outside facts. (Eg, Hannity's back-on-his-heels surprise about a number of the replies Newsom made.) Thus Alito saying: How could anyone look at me askance?
I completely agree. And what I think too many don't realize is how this was common in American history. In the 19th century, it was normal for a newspaper to be all-out for one party or the other, to overstate one side's accomplishments and overstate the other side's failures.
💯, Jim... but still, I have a few "questions" to offer for consideration (one counter-speculative and the other more to the point at hand...):
1) Under the aegis of a Gore presidency with the same disposition of seats in the House and Senate, would 9/11 have been thwarted? ... and if not, what would have been the reaction of a marginally GOP House "led" by Speaker Hastert (🙄) and a 50/50 Senate? (and in the latter case, would Jim Jeffords have become an independent who would caucus with the Democrats?)
I would like to believe that Al Gore would have been far more attentive to the PDB's and that continuity with the Clinton administration would have been far more effective... and if not, I would like to believe that the Republicans would have rallied around Al Gore as unambiguously as Democrats did for George Bush... but I'm not particularly confident on either matter... nor am I sanguine that Saddam Hussein would not have struck out again in a radically destabilizing manner (though probably not w/WMDs, but they were never the central question...).
On the other hand I am confident that Al Gore would not have cut taxes in the face of such crises, and I'm also confident that climate change would have remained in the forefront and would have accelerated the technological revolution that is centered on new alternative energy and the emergence of new industries (though again, the role of the Congress might have been a brake on all that...).
More pertinent to your argument, Jim, I have to wonder whether Sandra Day O'Connor would have retired before 2004 and, if she had, what sort of nominee Al Gore could have confirmed. As for replacing the Chief Justice in 2005, we have to wonder who would have been in the White House and under what conditions...
... but that's all speculation-upon-speculation. Here's where we are today:
2) Since impeachment is the only formal way a Supreme Court Justice can be removed from office lawfully, does the DOJ have an equivalent policy for SCOTUS as described by Robert Mueller (among others) for the President (and Vice President, I presume): a sitting [fill-in-the-blank] cannot be indicted though crimes commited while in office are subject to a statue of limitations that would allow indictment once out of office.
While the president can only serve for 8 years and a vice president could, in theory, serve for 16 if elected president after a second term as vice president, the statute of limitations on federal crimes of fraud and bribery apparently are from between 5 and 7 years *from the time the crime was committed* (see below).
We have our "suspicions" given recent reports that have largely been corroborated if still denigrated by the parties to those circumstances, but could the Department of Justice actually pursue a formal indictment of corruption against any sitting member of the highest court in the land? For any crime whatsoever?
And given the statute of limitations, are those justices free from any exposure as long as their "last" dip in the well of corruption was 7 years in the past? (I guess we can be happy they haven't been that careful...)
For what it's worth, it would be nice to know if that DOJ policy exists for SCOTUS (though we'll probably never know if any investigations were stymied or stillborn due to its existence...🤔)
Ed, excellent points and questions. And, as with any "alternative history" questions, they're also impossible to answer. As you rightly point out, they provoke all kinds of "what if" speculation about Gore, about the PDB, about O'Connor, about who might have been president in 2005 if Gore had taken office in 2001, and so on.
I'll just leave them in the form you asked them, with my thanks.
Thanks, Jim... but the more I think about it, the more I wish I had not left my initial question as an afterthought: is it DOJ policy to not indict - and probably not investigate with all the instruments available to it - a potential violation of a federal statute by a Supreme Court justice? While we're not talking about shooting someone in the middle of 5th Avenue, one could imagine a reticence to investigate other forms of malfeseance; for that matter, how would the IRS respond if the Congress asked to see tax returns from a sitting member of the highest court in the land?
For what it's worth, these do not seem like partisan speculation any more...
When I had a tiny piece to do with a City Redevelopment project in Southern California, I had to disclose my financial holdings. For a contract in the tens of thousands of dollars.
Caesars wife should apply to the Justices, but since it never will, here is my solution.
A Constitutional Amendment.
"The term of any Federal Judge, in any Federal Court, combined, in total, shall be no more than 14 years."
On the term-limit idea: I am for anything that gets us in that direction.
The specific plan from the American Academy 'Our Common Purpose' report, as I mention frequently, was to have 18-year terms for Scotus, staggered so that each president would predictably have one nomination every two years. They also make the case that this would *not* require an Amendment. Details here: https://www.amacad.org/ourcommonpurpose/recommendation-1-8
Fix the Court has a similar proposal (also with no amendment):
Love this. My one quibble is that there is one check/balance on the Justices, congressional impeachment. Only been used once in 1804 (and then, not convicted), and certainly not going to be used in the current circumstances. Just a minor point.
It seems so elemental and so obvious. Unfortunately, a combination of partisanship and back scratching culture in Washington will likely doom any efforts to impose ethics standards on SCOTUS.
Republicans are so afraid of acknowledging that their court victories may be the fruits of a poisoned tree that they just will not acknowledge the problem. And, while this may sound like bothsiderism (but not intended as such), I suspect that there are more than a few Democrats who are uncomfortable about ethics discussions in general. It's dispiriting.
Thanks, well put. As you say, it's hard to see a practical path toward any of the desperately needed reforms. Yet they remain desperately needed. As you say, this is ... dispiriting.
A fundamental point well made here: how far back it time, if at all, could court decisions be put in jeopardy if legally-pertinent corruption of the court was proven *beyond a reasonable doubt"? Is there any precedent or mechanism for "clawback" as one would do with financial corruption (as in a Ponzi scheme)?
Just to be clear, this is not the same as asking what should be done if an elected legislature established laws under the corrupt influences because there are multiple signatories to those acts who share responsibility for having allowed the corruption to pass unidentified.
What would be a plausible course of action if the arguments that the GOP has been in cahoots with a few of the conservatives in the court since 2000 at the very least? Remember Antonin Scalia hunting with Dick Cheney? Did they really just discuss their preferences in duck blinds and bird dogs??
This I can answer. There is no clawback. When a Supreme Court decision is "entered" (aka filed) by the clerk of the court, it is final unless (1) it is reversed by a subsequent Court or (2) Congress passes a law that effectively mandates action contrary to what the Court required or (3) the Constitution is amended to the contrary.
Of course, there are technicalities. If the appeal was from a state court a "mandate" must be issued after 25 days from entry to the state court, essentially an official notice of what the Court decided; the Court or a Justice may shorten or extend the time, or the parties may stipulate to a shorter time. Until the mandate issues, the state court can pretend that the Court has not spoken. If the appeal was from a federal court, no mandate is required, but one can be issued if the opinion directs it be issued. (Rule 42.5 of Rules of the Supreme Court). Under Rule 44 of the Court, the parties have 25 days after entry of the judgment or decision to file a petition for rehearing. If the petition is filed, the mandate, if applicable, is stayed until the petition is resolved (almost always denied). If the petition is granted (by a 5 Justice vote), the case may be re-briefed, or reheard, but most likely the opinion is amended to stick it to the petitioner.
There is no law that permits a Supreme Court decision to be cancelled because it was procured by fraud. And if Congress tried to enact a law that penalized a Justice for doing something that was not proscribed by law at the time said justice did it, that would be an ex post facto law prohibited by the Constitution. Perhaps Congress could impeach the Justice for some other invented misdemeanor, but that is different from what you are asking about.
It would be easy for me to say that I already understood the essense of what you explain so precisely, but the elaboration of the process only doubles the anger I share.
In reality, I was reacting to your statement that "Republicans are so afraid of acknowledging that their court victories may be the fruits of a poisoned tree that they just will not acknowledge the problem."
One could say that our frustration here is the same as that tied to dubious actions like Bush-v-Gore, the rank obstruction of Garland by McConnell in 2012, and his reversed hypocrisy when Coney-Barrett was nominated and confirmed at the 11th hour in 2020...
... but this is not just sour grapes if your supposition of a poisonous fruit is ever verified beyond what we already know circumstantially. While it is clear that there is nothing that can be done in retrospect about these decisions and actions, that does not molify the bitterness that fairminded people will retain nor will it dampen the motivation to find a basis to expose and punish those responsible for the corruption in the first place. Can a corrupting party be charged even if the corrupted party is immune from prosecution by his or her status (including his or her demise)?
I'm a writer and have benefited greatly from the help and advice of various government officials from a state coroner to an FBI agent. At first I tried to show my appreciation by giving them a copy of my latest novel, but since they cost over over $25, which was the limit put on the value of a gift they could accept, they had to regretfully refuse.
Every. Single. One. of them.
If a clerk in the Alaska Bureau of Health Analytics & Vital Records is respectful of the gift limit, how can a Supreme Court justice not be?
It reminds me of similar down-to-the-penny punctiliousness I've seen from public officials and military officers in my similar journalistic interactions with them.
One illustration sort of like yours: Years ago, there was an executive branch official who had given me a lot of guidance and technical help on an article. I knew he was a flying enthusiast, and I offered one time to give him a sight-seeing tour in my plane. (As I have done for many friends over the years.)
He was very interested but had to decline. He felt he couldn't accept this as a "favor" from me, because the supposed market-value of an hour or two of airplane time would be many hundreds of dollars. On my side, I was not allowed to accept any money from him (having a private-pilot rather than commercial-pilot certificate) — and even if I could, my "favor" would amount to his having to pay me a whole lot of money.
If only I'd thought to tell him: "Well, this seat would otherwise be unoccupied," a la Alito.
Every one I have ever met is acutely conscious of the gift limit. The oblivious arrogance of Thomas and Alito is staggering. And I still want to know who paid off Kavanaugh's credit cards.
Great piece. But right after you emphasized that you never call it full disclosure, you wrote this: "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 full-disclosure requirements."
I laud your intent in arguing for the need of ethical guidelines. Let me be clear from the Start. I believe Dobbs to have overreached and I think Justice Alito's argument to have gone far beyond the boundaries of originalism and to be much more an example of judicial activism see below*. My problem is with what those requirements or guidelines might look like and with how they might be enforced. First, however, you fail to mention that there is currently in place another stick that may be used. Impeachment. While only one Justice, Samuel Chase, in 1805, has ever been impeached by the house, and was acquitted by the Senate, Iit is nonetheless a constitutional guardrail already in place. Art 1 sec 2 and Art 2 sec 4 US Constitution. And yes it is, as it should be, a very high bar to vault, if it were to be used.
And before I proceed with enumerating what I see as problems with proposed solutions to the perceived problem of influence and unethical behavior I want to offer an insight into The Chief Justice's so-called indifference to this. First 5. The number needed for a majority decision. As a matter of practice and not principle The Chief when adopting his policeman's role needs be very careful not to alienate the votes needed for a ruling. Second >5. Given the already balkanized condition of the polity the larger the majority the better. So again the need to step softly. e.g. The ACA ruling (7-2). I would also argue that Roberts worked hard, but failed, to restrain Alito's Dobbs opinion. This is not a failure or argument against the institution of the the Court itself or its current composition (neither is the current composition of the court an argument in favor of more regulation). Process is a necessary condition of legitimacy but is by no means a sufficient condition or a guarantee of a correct ruling The Constitution itself is the only foundation on which to ground a ruling. One can argue that a ruling is constitutional in its process yet at the same time a complete misunderstanding of that very Constitution. Any attempts at assuring correct rulings are in fact subversive of our constitution and its foundation which is the realization and argument that sovereignty derives from the citizenry because of our status as free and autonomous being while at the same time along recognizing that majority's are not infallible but can be tyrannical and while minorities need protection they are also not infallible hence the need for an arbitration by a third arm of government. *I offer Brown v Board as the other side of the coin of the the Dobbs ruling as an example of a "constitutional decision". It was in fact far ahead of and in defiance of the majority of the country it was however, on a firm constitutional ground whereas Dobbs strays far from a constitutional foundation despite and because of Alito's tortured historical arguments. Yet both rulings are constitutional.
Now back to what some type of ethical oversight might look like or why it would accomplish its goal of achieving a more fair and just Supreme Court. The criticism leveled against Thomas and Alito is that their association with wealth and their acceptance of gifts in kind and in funds as alleged against Justice Thomas not only lends an appearance of corruption but in fact lead to unjust opinions. If this in fact is the case where or what would be the proof? I think that would be a hard thing to prove and what for example is the difference between this association with wealth and the effect on one's opinions than say an Ivy league education ( with the exception of Justice Barred all are either Harvard or Yale Law greduates, or growing up in a well to do family? Or how does the fact that 7 of the current Justices are Catholic influence their interpretation of the Constitution? Maybe the Justices in exchange for their office be cloistered? Would it matter what their reading is, or what newspapers they may read? Or who their friends are and what are their political positions. When it comes down to it I think much of the concern here is less about the money and more about the content of the rulings. There's certainly jsut as much money on the left aimed at PACS, Politicians, Foundations, and so forth. I think it prudent to require transparency from the Justices in reporting monetary and gifts in kind. Not as a means of preventing influence but rather in the name of honesty and transparency. My guess is that the more liberal Justices were required to list such items it would be in the same monetary ballpark as the other Justices. In the end the Supreme Court and in somewhat the same vein the Electoral college are institutions and processes designed by the founders and ratified by the States to protect us from our darker selves and to promote and encourage our better nature. Without them we'd be much the worse. I'm reminded of a quote from Jefferson Davis, in Shelby Steele's Vol 1 The Civil War: “Revolutions develop the high qualities of the good and the great, but they cannot change the nature of the vicious and the selfish. “
Thank you for this detailed and erudite response. I genuinely appreciate it.
On one specific point: Yes, as mentioned in another comment-exchange, I do realize that in principle Supreme Court justices can be impeached. As you point out, the reality that no Justice has been impeached in more than 200 years, and that no one has been convicted-and-removed ever, makes this seem a theoretical rather than realistic factor. But I'll take care to mention it.
I'm grateful for your explaining how vote-counting looks from a Chief Justice's point of view. Someone has probably done a book about how this kind of "leadership," of a group over which a CJ has zero direct control, has worked over the years — compared, say, with the role of a Speaker of the House, or Senate Majority Leader. (Each of whom, again, has no *direct* control over the members, but has different electoral imperatives.)
On whether Alito, Thomas, etc would have voted any differently if they had not befriended Singer or Crow: I agree that they probably would have voted just the same way. The point to me is the *transparency* — or, rather, the hubris in thinking that they, uniquely, should not be subject to any inspection or disclosure.
Would I have written the same things about Google or Esri if I had not been friends with the founders / CEOs? Probably so. But people are notoriously bad judges of their own probity. Alito and Thomas are taking a "how dare you!!" response to anyone questioning whether they might even conceivably be influenced by gifts and connections. My policy is: Let your audience know, and they can judge for themselves.
And of course this is just for an "audience" — rather than for a "citizenry," since I (like all writers) have zero direct control over anyone else. Supreme Court justices, on the other hand.
Again I am sincerely grateful for your care in exposition.
I concur. The power of the Supreme court in our republic is unmatched and no matter how many ways you slice it is, essentially undemocratic. However, if the other two branches which are representative and more democratic would actually function, via compromise and pragmatism, rather than the ideological posing and feces throwing that seems to be their current metier than the Supremes would not be weighing in so often or so divisively. Madison in Fed 51 made this point much more eloquently over 200 years ago, referring to the need of "a will independent of the society itself."
"In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. "
Federalist 51
Thanks. I do agree with the point in general.
On the other hand, I think three of the most disruptive modern-era rulings are (important) exceptions to that rule — cases in which the court decided to get in the middle of controversies that were not the result of legislative/executive branch paralysis or polarization.
I am thinking of:
— 'Shelby County,' which (as you know) in effect undid a lot of the 1965 Voting Righs Act;
— 'Citizens United,' which (in my opinion) amounted to legislating from the bench, with enormous effect;
— 'Dobbs,' which gratuitously upended half a century of seemingly "settled" law, in an area where individual opinions obviously differ dramatically, but in which 'Roe' had seemed to represent the established compromise.
In my view, with all the stipulations and priors ("I worked for a Democrat") you are aware of, a huge proportion of today's controversy over the Court arises from (a) those three decisions, and (b) the complete indifference to appearance, transparency, "Caesar's wife," and so on by Thomas and Alito specifically and their colleagues in general.
I want to reply in full in a few more days as life is getting in the way right now,(I agree on the 3 rulings being poor and just plain wrong constitutional interpretation.) but I quickly want to offer the Moore V Harper ruling 6-3 as the type of non- ideological compromise the Chief Justice can bring about. TTFN
Well wait long enough...and Damon Linker says what I intended to say much more succinctly: https://damonlinker.substack.com/p/on-reactionand-overreaction/comments
BTW I'd relish if you and Damon might on occasion engage in a dialogue. Be Well.
Can you elaborate further on this? I don't follow:
"U.S. Senators representing Democratic votes have outnumbered those representing Republicans ever since 1996. This is calculated by summing the votes for Democratic senators, versus those for Republicans, in each year’s election."
Some elections more Dem Senators than GOP Senators are elected, some elections fewer, right?
Yes, thanks, good catch.
I have rephrased this to make clear this point:
— IF you took all the votes cast in an election year for Democratic Senate candidates, and compared them with all votes cast for Republican candidates, since 1996 the Democratic total would be larger.
—- ALSO if you imputed to Senators the "representation" of their states — each US Senator from, say, California would notionally represent 50% of those 39 million people, and with a divided state each Senator would represent half — then also for several decades the Democrats have "represented" more people.
Obviously the Senate doesn't work this way. But it's an interesting measure.
Absolute power corrupts absolutely. The supremes are human people, no matter what they'd have us believe. Term limits. Real, bipartisan vetting. Oversight. Mandatory political balance through mandate or numbers. Some system of appeal that works within the Constitution. Anything but what the Court has become.
Thank you. I agree.
GMAFB! :) I love the moral clarity here. Thank you, James!
I try not to "work blue," but sometimes, you know ...
The Court has a long history of controversy about and distrust in its decisions. E.g., its defence of slavery, dislike of the New Deal, subsequent embrace of desegregation, abortion and gun ownership and baseless intrusion into a presidential election. . But, distrust of the probity of its individual members has been rarer, until now. The arrogance of Thomas and now Alito, the weakness of Roberts, it’s Chief Justice, all happening together, completes the growing distrust in the other two branches of our central Government, both Congress and the Executive. This is a crisis both domestically and internationally, adding to the long decline in the U.S. standing as a democracy and its values. Whether the voters of the United States, 75 million of who, sought four more years of Donald Trump as president, can constructively address this crisi, seems improbable. The U.S. is in a mess. Whether the eloquence of Jim Fallows and other voices in the media can help resolve the mess is by no means certain. But, they must try.
Thanks very much for reading and for weighing in.
I agree that the Court's current collapse of moral standing has the potential to be a genuine problem-of-governance, as if we needed any more of those.
The public figure I'm following most closely on this is Sheldon Whitehouse. In practical terms, for reasons you allude to, it is going to be nearly impossible to enact reforms like those he is working on — or others from groups like Fix the Court ( https://fixthecourt.com/ ) or the American Academy's 'Our Common Purpose' report a few years ago. But, as you say, it matters that they continue to make the case, and that we all try.
"...a genuine problem-of-governance, as if we needed any more of those."
Hear, hear.
"Therefore there is no remedy but the Congress."
We're screwed then, aren't we?
Badda-bing!
It isn’t clear that Gore would have won had the counting proceeded. The court should not have taken Gore’s appeal on the grounds that he had raised a political question. Had the issue gone to the House Bush would have won.
Andy, as always, fair and astute points. 100% agree about the outcome in the House. And it's not ever fair (though it is often interesting) to run "what if?" mental experiments about history unfolding along different paths. For instance, what if James Comey had decided to keep his thoughts to himself ten days before the 2016 election? What if Anthony Weiner had not been such a .... jerk.
I'm sure you're aware of this, but I often think about the dissent in Bush v. Gore by the great John Paul Stevens. Its conclusion (for the record):
"The [ruling] by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land....
"One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law."
Jim I share your disgust that the Supreme Court today should be called the STENCH COURT.
At 89 I have witnessed major oscillations on the Supreme Court. A conservative court was killing important legislation of FDR’s New DeaL [Actually some of the legislation was drafted hastily and badly. Several of the Court’s rejections were 9-0.]
FDR, after a gigantic re-election victory, proposed a Court-packing ‘solution’ to his Court problem. Despite his political power and personal frustration, this was rejected and died a swift death. In subsequent years FDR had the opportunity to select some more progressive justices.
I recall that the appointment of Governor Earl Warren by Ike caused some raised eye brows. He seemed more ‘social’ than judicial in his rulings. He did cajole justices [including a former KKK member] to vote 9-0 in the Brown v. Board of Education 1954 decision that rejected the ‘separate but equal’ decision of 1897.
I sensed that something was out of kilter with the Supreme Court in recent decades. The 1991 vote to appoint Clarence Thomas to the Court was clearly far more political than judicial. Whether on his legal record or on his character, as reflected in the Senate hearing, Thomas had not earned the right of life-time service on the Supreme Court.
Subsequently the Federalist Society, Mitch McConnell, and President Trump engaged in skullduggery to pack the Court with some far-less-than-non-partisan justices.The denial of a hearing for Garland under an absurd McConnell ‘ruling,’ and then his reversal of this absurdity to appoint Bartlett highlighted these judicial jinks.
At one time, I had hoped that Chief Justice Roberts, concerned about the history of the Roberts Court, might be a swing vote on key issues. Unfortunately, now the Court is 5-3 with ‘originalists,’ and Roberts often is not a key figure.
For me, this is compounded by the billionaires who have funneled major goodies to Gina/Clarence Thomas and Samuel Alioto. That Chief Justice Robert’s wife has received fees of over $10,000,000 as a lawyer recruiter, I find smelly.
I strongly belief that the personal ethics of all justices should be beyond reproach. When Justice Abe Fortas displayed poor ethics decades ago, he was obliged to resign.
Sadly, I do not believe that the Constitution, even if both houses of Congress voted to impose ethic standards for Supreme Court justices, permits Congress to impose strict ethics rules for SC justices.
Until or unless a Democratic president and Senate has the opportunity to replace several of the sitting ‘conservative’ justices, there is little that can be done.
My hope (and prayer) is that Clarence and Alioto will realize that their personal ethics sullies the Supreme Court. Another way out hope/prayer is that the current justices will realize that their judicial pyrotechnics violate the soul of present-day America and are opposed to the wishes of a majority of Americans.
More realistically, I am setting a sea anchor in hopes that common sense on the Supreme Court might return after the dreadful hurricane, that commenced in 2010 with Citizens United, has subsided.
This is all very well put. Sincere thanks. (For me, much of the payoff of the early blogging era, and today's Substack version, is being able to engage the wisdom-of-an-informed crowd. So again I appreciate it.)
For reasons you and others have pointed out, the immediate tools-of-change are limited and hard to implement. Reportorially, I'll try to look further into what the practical, feasible, and politically imaginable remedies might be.
I am not a lawyer. I am a constitutional historian who has taught aspects of the. Constitution for nearly 20 years.
The Constitution provides for the impeachment of Supreme Court justices. This has only been initiated once, in the early days of conflict between Chief Justice John Marshall and President Jefferson. The target was Justice Samuel Chase, whose performance was ‘untoward.’ The House sought to impeach him and the Senate did not.
I am unaware of subsequent impeachment initiatives. Since an impeachment would require 2/3 vote in the Senate, it seems extremely unlikely that such would occur except in most extraordinary circumstances.
During the Civil War there was a severe clash between President Lincoln and the Taney Court. On several occasions Lincoln pursued ‘nonacquiescence’ on several Taney Court rulings claiming extreme circumstances.
In the early 1830s President Jackson refused to accept a ruling of the Marshall Court. This posed a major presidency/Supreme Court issue that was solved politically in a ‘nullification’ rejection of John Calhoun and a fudging of a Native American court decision.
I'm reminded that one dissenter in the Dred Scott case, Benjamin Curtis, was the brother of an attorney who argued for Scott's freedom. But no one doubted where the Curtises stood. By contrast, James Buchanan leaned on a fellow Pennsylvanian on the court, Robert Grier, to vote with the five southerners so the decision wouldn't look "regional." Which is worse?
I have no doubt that Alito would have voted Singer's way only 100% of the time, which also makes me wonder why Singer felt the need to buy him off--he must not be the brightest hedge fund billionaire; he should have been offering seats on his plane to Ginsburg and Breyer in hopes of swaying them. But Alito--frankly, not only like Thomas, but also like Scalia before him--appears to think Fux Noise is the revealed word of news, because he sounds, as Thomas does and Scalia did, like they are auditioning for the slot previously held by my publicist, Tucker Carlson.
I did *not* know that about the Curtis brothers in Dred Scott. Thank you.
Agree that votes by Alito, Thomas, and Scalia seem to be "pre-determined," whether or not they went on these trips. But still ....
Also agree that they seem to be creatures of the Fox info-sphere. I believe it was the recent PBS / Frontline documentary on Clarence and Ginny Thomas that said that their exclusive info source was Fox News — plus Rush Limbaugh when he was around. That seems to be the background tone of Alito's writings as well. As I mentioned in the Hannity/Newsom post, that infosphere is so enveloping that it leaves people entirely unaware of counter-arguments or inconvenient outside facts. (Eg, Hannity's back-on-his-heels surprise about a number of the replies Newsom made.) Thus Alito saying: How could anyone look at me askance?
"My publicist, Tucker Carlson".... Hmmmm!
I completely agree. And what I think too many don't realize is how this was common in American history. In the 19th century, it was normal for a newspaper to be all-out for one party or the other, to overstate one side's accomplishments and overstate the other side's failures.
As for publicist ... He devoted some time on the air to this: https://www.professorwatchlist.org/professor/michaelgreen
💯, Jim... but still, I have a few "questions" to offer for consideration (one counter-speculative and the other more to the point at hand...):
1) Under the aegis of a Gore presidency with the same disposition of seats in the House and Senate, would 9/11 have been thwarted? ... and if not, what would have been the reaction of a marginally GOP House "led" by Speaker Hastert (🙄) and a 50/50 Senate? (and in the latter case, would Jim Jeffords have become an independent who would caucus with the Democrats?)
I would like to believe that Al Gore would have been far more attentive to the PDB's and that continuity with the Clinton administration would have been far more effective... and if not, I would like to believe that the Republicans would have rallied around Al Gore as unambiguously as Democrats did for George Bush... but I'm not particularly confident on either matter... nor am I sanguine that Saddam Hussein would not have struck out again in a radically destabilizing manner (though probably not w/WMDs, but they were never the central question...).
On the other hand I am confident that Al Gore would not have cut taxes in the face of such crises, and I'm also confident that climate change would have remained in the forefront and would have accelerated the technological revolution that is centered on new alternative energy and the emergence of new industries (though again, the role of the Congress might have been a brake on all that...).
More pertinent to your argument, Jim, I have to wonder whether Sandra Day O'Connor would have retired before 2004 and, if she had, what sort of nominee Al Gore could have confirmed. As for replacing the Chief Justice in 2005, we have to wonder who would have been in the White House and under what conditions...
... but that's all speculation-upon-speculation. Here's where we are today:
2) Since impeachment is the only formal way a Supreme Court Justice can be removed from office lawfully, does the DOJ have an equivalent policy for SCOTUS as described by Robert Mueller (among others) for the President (and Vice President, I presume): a sitting [fill-in-the-blank] cannot be indicted though crimes commited while in office are subject to a statue of limitations that would allow indictment once out of office.
While the president can only serve for 8 years and a vice president could, in theory, serve for 16 if elected president after a second term as vice president, the statute of limitations on federal crimes of fraud and bribery apparently are from between 5 and 7 years *from the time the crime was committed* (see below).
We have our "suspicions" given recent reports that have largely been corroborated if still denigrated by the parties to those circumstances, but could the Department of Justice actually pursue a formal indictment of corruption against any sitting member of the highest court in the land? For any crime whatsoever?
And given the statute of limitations, are those justices free from any exposure as long as their "last" dip in the well of corruption was 7 years in the past? (I guess we can be happy they haven't been that careful...)
For what it's worth, it would be nice to know if that DOJ policy exists for SCOTUS (though we'll probably never know if any investigations were stymied or stillborn due to its existence...🤔)
see: https://sgp.fas.org/crs/misc/RL31253.pdf
Ed, excellent points and questions. And, as with any "alternative history" questions, they're also impossible to answer. As you rightly point out, they provoke all kinds of "what if" speculation about Gore, about the PDB, about O'Connor, about who might have been president in 2005 if Gore had taken office in 2001, and so on.
I'll just leave them in the form you asked them, with my thanks.
Thanks, Jim... but the more I think about it, the more I wish I had not left my initial question as an afterthought: is it DOJ policy to not indict - and probably not investigate with all the instruments available to it - a potential violation of a federal statute by a Supreme Court justice? While we're not talking about shooting someone in the middle of 5th Avenue, one could imagine a reticence to investigate other forms of malfeseance; for that matter, how would the IRS respond if the Congress asked to see tax returns from a sitting member of the highest court in the land?
For what it's worth, these do not seem like partisan speculation any more...
When I had a tiny piece to do with a City Redevelopment project in Southern California, I had to disclose my financial holdings. For a contract in the tens of thousands of dollars.
Caesars wife should apply to the Justices, but since it never will, here is my solution.
A Constitutional Amendment.
"The term of any Federal Judge, in any Federal Court, combined, in total, shall be no more than 14 years."
And mandatory retirement at age 70. If we could make that work for Congress and the Presidency, too, so much the better.
Great illustration from SoCal.
On the term-limit idea: I am for anything that gets us in that direction.
The specific plan from the American Academy 'Our Common Purpose' report, as I mention frequently, was to have 18-year terms for Scotus, staggered so that each president would predictably have one nomination every two years. They also make the case that this would *not* require an Amendment. Details here: https://www.amacad.org/ourcommonpurpose/recommendation-1-8
Fix the Court has a similar proposal (also with no amendment):
https://fixthecourt.com/fix/term-limits/
Love this. My one quibble is that there is one check/balance on the Justices, congressional impeachment. Only been used once in 1804 (and then, not convicted), and certainly not going to be used in the current circumstances. Just a minor point.
Charlie, yes, thanks very much. You're right to mention this — although, as you say, the in-practice historical record is discouraging.
Thanks for the clarification, and for reading.
It seems so elemental and so obvious. Unfortunately, a combination of partisanship and back scratching culture in Washington will likely doom any efforts to impose ethics standards on SCOTUS.
Republicans are so afraid of acknowledging that their court victories may be the fruits of a poisoned tree that they just will not acknowledge the problem. And, while this may sound like bothsiderism (but not intended as such), I suspect that there are more than a few Democrats who are uncomfortable about ethics discussions in general. It's dispiriting.
Thanks, well put. As you say, it's hard to see a practical path toward any of the desperately needed reforms. Yet they remain desperately needed. As you say, this is ... dispiriting.
A fundamental point well made here: how far back it time, if at all, could court decisions be put in jeopardy if legally-pertinent corruption of the court was proven *beyond a reasonable doubt"? Is there any precedent or mechanism for "clawback" as one would do with financial corruption (as in a Ponzi scheme)?
Just to be clear, this is not the same as asking what should be done if an elected legislature established laws under the corrupt influences because there are multiple signatories to those acts who share responsibility for having allowed the corruption to pass unidentified.
What would be a plausible course of action if the arguments that the GOP has been in cahoots with a few of the conservatives in the court since 2000 at the very least? Remember Antonin Scalia hunting with Dick Cheney? Did they really just discuss their preferences in duck blinds and bird dogs??
This I can answer. There is no clawback. When a Supreme Court decision is "entered" (aka filed) by the clerk of the court, it is final unless (1) it is reversed by a subsequent Court or (2) Congress passes a law that effectively mandates action contrary to what the Court required or (3) the Constitution is amended to the contrary.
Of course, there are technicalities. If the appeal was from a state court a "mandate" must be issued after 25 days from entry to the state court, essentially an official notice of what the Court decided; the Court or a Justice may shorten or extend the time, or the parties may stipulate to a shorter time. Until the mandate issues, the state court can pretend that the Court has not spoken. If the appeal was from a federal court, no mandate is required, but one can be issued if the opinion directs it be issued. (Rule 42.5 of Rules of the Supreme Court). Under Rule 44 of the Court, the parties have 25 days after entry of the judgment or decision to file a petition for rehearing. If the petition is filed, the mandate, if applicable, is stayed until the petition is resolved (almost always denied). If the petition is granted (by a 5 Justice vote), the case may be re-briefed, or reheard, but most likely the opinion is amended to stick it to the petitioner.
There is no law that permits a Supreme Court decision to be cancelled because it was procured by fraud. And if Congress tried to enact a law that penalized a Justice for doing something that was not proscribed by law at the time said justice did it, that would be an ex post facto law prohibited by the Constitution. Perhaps Congress could impeach the Justice for some other invented misdemeanor, but that is different from what you are asking about.
It would be easy for me to say that I already understood the essense of what you explain so precisely, but the elaboration of the process only doubles the anger I share.
In reality, I was reacting to your statement that "Republicans are so afraid of acknowledging that their court victories may be the fruits of a poisoned tree that they just will not acknowledge the problem."
One could say that our frustration here is the same as that tied to dubious actions like Bush-v-Gore, the rank obstruction of Garland by McConnell in 2012, and his reversed hypocrisy when Coney-Barrett was nominated and confirmed at the 11th hour in 2020...
... but this is not just sour grapes if your supposition of a poisonous fruit is ever verified beyond what we already know circumstantially. While it is clear that there is nothing that can be done in retrospect about these decisions and actions, that does not molify the bitterness that fairminded people will retain nor will it dampen the motivation to find a basis to expose and punish those responsible for the corruption in the first place. Can a corrupting party be charged even if the corrupted party is immune from prosecution by his or her status (including his or her demise)?
PS: I forgot to say "Thank you".
I'm a writer and have benefited greatly from the help and advice of various government officials from a state coroner to an FBI agent. At first I tried to show my appreciation by giving them a copy of my latest novel, but since they cost over over $25, which was the limit put on the value of a gift they could accept, they had to regretfully refuse.
Every. Single. One. of them.
If a clerk in the Alaska Bureau of Health Analytics & Vital Records is respectful of the gift limit, how can a Supreme Court justice not be?
That is a wonderfully vivid example. Thank you.
It reminds me of similar down-to-the-penny punctiliousness I've seen from public officials and military officers in my similar journalistic interactions with them.
One illustration sort of like yours: Years ago, there was an executive branch official who had given me a lot of guidance and technical help on an article. I knew he was a flying enthusiast, and I offered one time to give him a sight-seeing tour in my plane. (As I have done for many friends over the years.)
He was very interested but had to decline. He felt he couldn't accept this as a "favor" from me, because the supposed market-value of an hour or two of airplane time would be many hundreds of dollars. On my side, I was not allowed to accept any money from him (having a private-pilot rather than commercial-pilot certificate) — and even if I could, my "favor" would amount to his having to pay me a whole lot of money.
If only I'd thought to tell him: "Well, this seat would otherwise be unoccupied," a la Alito.
Agree of course with your point.
Every one I have ever met is acutely conscious of the gift limit. The oblivious arrogance of Thomas and Alito is staggering. And I still want to know who paid off Kavanaugh's credit cards.
Great piece. But right after you emphasized that you never call it full disclosure, you wrote this: "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 full-disclosure requirements."
Excellent catch! Will fix that now.
(And I *have* fixed it! )