The Supreme Court Has a Serial Killer Problem
In this week’s Elie v. U.S., The Nation’s justice correspondent recaps a major death penalty case that came before the high court as well as the shenanigans of a man who’s angling to be the next SCOTUS justice. Plus: Michael Jordan for AG?
Associate Justice Neil Gorsuch, the most pro-death penalty justice on the court.
(Erin Schaff-Pool / Getty Images)
Fascist Trump goon and recently elevated Third Circuit Judge Emil Bove attended a Trump rally in the Poconos this week. Bove has emerged as a front-runner for the next Supreme Court opening, so it might not surprise most people that he opted for a front row seat to listen to his benefactor talk about “shi thole countries.”
The thing is: It’s a serious ethics violation for a sitting federal judge to attend a political rally. Cannons 2 and 5 of the US Courts Judicial Code of Conduct prohibit most federal judges (the inexplicable exception is Supreme Court justices) from attending political events and ask them to avoid even the appearance of impropriety when it comes to supporting political candidates. Bove has clearly breached this code of conduct, and watchdog groups have already filed ethics complaints against him.
Not that it will do any good. Although federal judges must follow a code of ethics, they are not subject to independent, third-party oversight. Instead, ethics complaints against them are handled by the court they serve on. In Bove’s case, this means the complaints will be heard by his colleagues on the Third Circuit. And even if his fellow judges are as aghast at his behavior as they should be, the stiffest penalties for ethics violations usually amount to no more than censure. Federal courts do not have the authority to remove their own judges.
The only body that does have the power to kick Bove off the court for his corruption is Congress, through the constitutional process of impeachment. So now I am forced to quote a Democrat who cannot retire soon enough, the minority leader on the Senate Judiciary Committee, Dick Durbin. Here’s what he told Courthouse News Service: “Mr. Bove is a loyalist to President Trump, but I hoped that after he received this appointment to the federal bench at the second-highest court in the land, he would show better judgment.” When CNS asked Durbin whether Senate Democrats would “act against Bove,” he replied that he was still thinking about it.
A literal chimpanzee that was trained only to throw feces when displeased would be a more effective leader on Senate Judiciary than Durbin at this point.
In fairness, even if Durbin had sufficient spine to act, it wouldn’t matter. You need 67 votes to convict on an impeachment charge in the Senate (which itself assumes you could get charges through Mike Johnson’s House), and Republicans are already twisting themselves into pretzels to defend Bove. Check out this torturous logic from Senator Josh Hawley: “If a campaign hosts a dinner, a judge can’t go do that,” he told Courthouse News Service. “That’s a gift from a campaign. I think an event by a public official is fine. It’s within his discretion.”
According to Hawley, Bove can’t go to a dinner hosted by his friend Donald Trump, but can go to a political rally for his friend Donald Trump. What makes Hawley’s argument all the more risible is that it’s devoid of any reference to the actual statutory code covering judicial ethics. It’s a standard that Hawley is making up on the fly.
None of this remotely matters to Bove’s long-term project to be a Supreme Court justice. If Justice Sam Alito retires and Trump nominates Bove, Republicans will confirm him while Durbin and the Democrats continue to think about what to do next.
The Bad and the Ugly
- A judge is trying to block ICE from arresting immigrants outside of courthouses. But the Trump administration claims that “no such policy exists.” We are at maximum gaslighting here, with the Trump people saying they’re not doing what we can clearly see them doing.
- We can also clearly see ICE beating people up for no reason. This week, ICE assaulted a woman, placed her in leg restraints, and cut off her wedding ring for the crime of “observing ICE at a distance.” In a decision earlier this year, alleged attempted rapist Brett Kavanaugh described these sorts of attacks on citizens as a “minor inconvenience,” and I can only assume that’s because he considers lying face down in the snow while removing his wedding ring a normal Saturday night activity after he’s had a few beers.
- Obligatory reminder that the Epstein files are still a thing. A judge ordered the DOJ to unseal the grand jury investigation into Ghislaine Maxwell.
- Michael Jordan beat NASCAR. The racing organization just settled with a group of owners, which included his Airness, over an alleged antitrust violation. I hope one day President LeBron James nominates Jordan to be attorney general.
Inspired Takes
- Here’s the subhead to Tarpley Hitt’s latest article in The Nation: “The original [Barbie] doll was not made by Mattel but by a business that perfected its practice making plaster casts of Hitler.” If that does not pique your interest, what are we even doing here?
- Scientists gathered in the UK to, once again, desperately try to sound the alarm on climate change. We have arrived at the scene in the disaster movie where the egghead scientists are screaming to everyone that the great disaster is coming, but the bad guys in power refuse to listen to them. And we all know what happens to the scientists in those movies: They die. Then most of the rest of us die. Then one guy who listened to the scientists has to try to save what’s left. Mark Hertsgaard does his best Woody Harrelson impression in The Nation.
- My expertise generally stops at the water’s edge, so I do things like read Adam Serwer to understand how Trump’s white supremacist imperialism is being exported around the world.
Popular
“swipe left below to view more authors”Swipe →Worst Argument of the Week
I like to periodically remind everybody that the Trump administration and the Supreme Court are serial killers, finding speedy and efficient ways to murder people on death row. The Supreme Court held oral arguments this week in Hamm v. Smith, a capital punishment case in which lawyers for a person the state wants to kill argues that their client is intellectually disabled and should therefore be shielded from the death penalty.
As a public intellectual and a person who makes their living on at least the appearance of being “smart,” I’m always shocked when people bring up IQ scores. In my expensively educated mind, IQ has largely been debunked as a reliable way of measuring intellectual capacity. When people quote IQ scores to me, all I hear is “Big number good, fire bad.”
It turns out that we still heavily rely on IQ scores to determine who is fit to die. If you score under 70, you are deemed to be mentally incapable of understanding the severity of your crime, and thus it is cruel for the state to murder you. If you score over 70, well, apparently, you deserve to die.
Joseph Smith has taken four IQ tests over the past 40 years that he’s been on death row in Alabama. He’s scored between 72 and 78. Alabama wants to execute him based on these scores, but a panel of experts, taking what they described as a holistic approach that goes beyond his IQ scores, has determined that Smith is intellectually disabled. Alabama is asking the Supreme Court to let them kill the guy all the same.
In case I’m not being clear, I think the death penalty is wrong, morally barbaric, and a violation of the Eighth Amendment’s ban on cruel and unusual punishment. But any argument that devolves into whether a few points on a standardized test marks you for death is darkly absurdist. Alabama is literally arguing that it can ignore experts who say Smith is intellectually disabled because he scored too high, by a couple of points, on a test.
It doesn’t appear that the Supreme Court will agree. While listening to oral arguments, I could not get past Justice Neil Gorsuch, the most homicidal justice when it comes to capital punishment. Explaining Gorsuch’s cruel and bloodthirsty commitment to the death penalty was one of the first articles I wrote for The Nation.
But Ian Millhisier argues that if I hadn’t been blinded by Gorsuch’s usual arguments to kill as many people as quickly as possible, I might have noticed that the occasional tag team of Kavanaugh and Amy Coney Barrett seemed skeptical of Alabama’s arguments.
All I heard was Republican justifications for our continued use of medieval punishments, but I hope Millhiser is right.
What I Wrote
The most politically important case the Supreme Court heard this week was Trump v. Slaughter, a case that will determine whether Trump can fire administrators from independent federal agencies at will. The Republicans on the court sounded eager to give Trump this authoritarian power, thereby completing a long-held Republican goal of destroying the administrative state. I wrote about what will happen when they do this.
In News Unrelated to the Current Chaos
Last Friday, the World Cup, which will be played this summer in Canada, Mexico, and the United States, held its draw to sort all 48 teams in next year’s tournament. FIFA, the organization governing global soccer, turned it into a three-hour Trump rally.
FIFA is generally disgusting. Dave Zirin explains in The Nation that FIFA president Gianni Infantino is currently accused of aiding and abetting Israel’s war crimes in Palestine.
Infantino is also the guy who came up with the idea to create a FIFA “peace prize” and award it to Trump during the World Cup draw. He was so solicitous of Trump during the proceedings that I thought Trump was going to have to pay him hush money when the thing was over.
There are two likely explanations for Infantino and FIFA’s total prostration to Trump. One is that Infantino has long been rumored to be interested in launching his own authoritarian political career, somewhere in Europe, and he’s using FIFA as a springboard for those aspirations. The other reason is practical: Trump is a fickle madman easily capable of ruining the tournament set to be played in the country he now rules. But flattery will get you everywhere with Trump, and kissing his ass during World Cup warm-up events is one way to keep him from messing with actual World Cup events.
Here’s a fantastic YouTube video from the best American explicator of soccer, Zealand Shannon, which details everything that happened during the draw, and why. The Global South revolutionary in me wishes countries would just boycott this World Cup, but I know, practically speaking, that’s not going to happen. I mean, everybody went to freaking Qatar last time, so political righteousness is quite beyond the scope of international soccer. And in my more calm moments, I don’t actually think the athletes who’ve spent their entire lives dreaming of this opportunity should be punished just because one of the three host countries happens to be run by a racist nincompoop.
Still, I can’t say I’m looking forward to this year’s tournament. If the draw is any indication, it’s going to be drenched in disgusting Trumpism. My most realistic hope now is that when Trump shambles out to hand the winner their trophy, someone accidently kicks him in the balls.
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