Yes, Conservatives Have Captured the Supreme Court—but We Still Have Options

Yes, Conservatives Have Captured the Supreme Court—but We Still Have Options

Yes, Conservatives Have Captured the Supreme Court—but We Still Have Options

Ethics reform sounds wonky, but it could save us from some of the worst abuses by Thomas, Alito, and (you guessed it) Kavanaugh.


Do you remember Brett Kavanaugh? I know this happened nearly seven Scaramuccis ago, but do you remember the screaming, sneering man who repeatedly lied to Congress, vowed vengeance against his political enemies, and was credibly accused of attempted rape? I hate to break it to you, but that man is on the Supreme Court now.

This week, a panel of federal judges dismissed all 83 ethics complaints filed against Kavanaugh. The judges made no findings on the merits of those complaints. Chief Judge Timothy Tymkovich, a Bush appointee, said that the complaints “are serious,” but concluded, as most legal scholars would, that the panel had no statutory authority to act against a sitting Supreme Court justice, regardless of the seriousness or veracity of the claims.

So what now? To the extent progressives have remembered the Brett Kavanaugh affair over the past few months, the talk has mainly centered around his impeachment. But impeachment—even if you could convince 20-odd Senate Republicans who just voted to confirm him to change their minds—would only solve the problems specific to Kavanaugh’s record of deceit and bias. Impeachment does not address the structural problems with the Supreme Court’s legitimacy, or the Senate’s confirmation process for nominees.

We need wide-ranging Supreme Court reform that will do more than sweep away the stink of Mitch McConnell’s appointments upon the institution. The newly elected Democratic House majority can start with something far more ambitious than impeaching one bad justice. We’ve been told to expect an ethics bill in the new Congress; I would like to see that bill include provisions that attempt to hold the Supreme Court justices to ethical principles of recusals and disqualifications from cases where they have a conflict of interest or an appearance of bias.

Every judge in the nation is subject to bipartisan guidelines regarding when they must recuse themselves from a case—every judge except Supreme Court justices. For federal judges, their recusal guidelines are etched in the “Code of Conduct for United States Judges.” Originally adopted by the Judicial Conference of 1973, the code represents an agreement by judges for when they should disqualify themselves from a case.

The code does not apply to the Supreme Court because of… reasons. By forcing these principles upon the Supreme Court, Congress would immediately fix one very real problem with the Court’s legitimacy—and that problem is named Virginia “Ginni” Thomas, wife of Supreme Court Justice Clarence Thomas. The code says, in pertinent part:

(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which:…

(d) the judge or the judge’s spouse, or a person related to either within the third degree of relationship, or the spouse of such a person is:

(i) a party to the proceeding, or an officer, director, or trustee of a party;
(ii) acting as a lawyer in the proceeding;
(iii) known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; or
(iv) to the judge’s knowledge likely to be a material witness in the proceeding;
Ginni Thomas is a conservative activist with known positions on many issues that come before the Court. She used to work for the conservative Heritage Foundation, and has lobbied on behalf of Liberty Central, a right-wing non-profit.

It is, frankly, ridiculous, that Justice Thomas sits in judgement on issues where “the judge’s spouse” has a “an interest that could be substantially affected by the outcome of the proceeding.” Ginni Thomas was working in opposition to the health care law, while Thomas was deciding against the constitutionality of the Affordable Care Act. More recently, Thomas was seen trolling Parkland students on Twitter, as if gun control never comes up before the Supreme Court.

If Clarence Thomas were a judge on any court but the very highest one, he’d have to recuse himself from any number of cases because of his spouse’s political activities.

The Supreme Court views itself as above the code. Mainstream legal scholars argue that, while the Constitution gives Congress power to shape the rules for “inferior” courts, Supreme Court justices are supposed to serve for life and are not subject to congressional oversight. It’s a separation of powers issue, so the story goes. The Court represents the judicial power of the United States, and that power cannot be questioned by any other branch of government.

I find that argument unpersuasive, because the Constitution says that even Supreme Court justices will hold their offices “during good behavior.” That suggests that somebody has the authority to codify what “good behavior” means, and Congress is as logical a place as any to sort that out. We know Congress has the power to impeach Supreme Court justices; it stands to reason that it also has the power to legislate what might constitute conflicts of interest and impeachable offenses.

John Roberts is hostile to ethics reform for the Supreme Court because he see it as unnecessary. He argues that judges do in fact consult the code to govern their own judicial conduct. Casual observers can point to a number of high-profile recusals, notably Elena Kagan’s decision to absent herself from the Abby Fisher–inspired string of affirmative-action cases, because she worked on the cases when she was the US solicitor general.

But Roberts’s excuse for a “system” leaves these decisions entirely to the good conscience of the justices. It does not address a situation like that of Clarence Thomas, who wants us to ignore his spouse’s lobbying efforts. It does not address the current situation with Kavanaugh, where a federal panel composed of other judges is literally saying it does not have the authority to hold him accountable for potentially serious ethics violations.

Congress needs to merely imposes the Code of Conduct on the Supreme Court. But I wouldn’t stop there, I’d take reform a step further: Justices and Judges should recuse themselves from any case that personally involves the president who appointed them.

As currently constituted, a president facing, I don’t know, potential indictment for his involvement in a massive international criminal conspiracy, can pick his own judges who will determine whether or not he can be indicted. That seems wrong! That seems like something that shouldn’t happen in a functioning democracy.

To be clear, I’m not trying to create a legal loophole to challenge judicial impartiality on any action a president takes. We must still have faith, even if it’s a blind, stupid faith, in the ability of justices to remain impartial on cases involving the constitutionality of the executive’s actions. I have to trust that a Neil Gorsuch can look at his president’s signature policy of bigoted immigration bans without passion or prejudice, or else I don’t get to have a nation with judicial oversight of laws.

But I shouldn’t have to leave it to Gorsuch’s good character in the extraordinary circumstances when the president is personally accused of wrongdoing. Faith in our judiciary should not be contingent on Brett Kavanaugh’s promise that he’s over the rage tantrum he displayed during his confirmation hearing. In the rare circumstances where the president is personally involved in the case, the president cannot be allowed to pick his or her own judges. There are rare cases: Clinton v. Jones, Bush v. Gore, Trump v. Everybody et Al., where the stakes are so high that the mere appearance of bias demands that the president’s hand-picked justices sit one out.

I’ve written extensively on the need for judicial reform in the form of court packing, and that’s still an idea that progressives must take seriously to counteract the McConnell Court. But in the meantime, ethics reform is the kind of thing that could gain at least some bipartisan support. Most Americans do not know that the Supreme Court operates under no independent ethical guidelines. Now that an increasing number of Americans are aware that the Court is a political body, holding these people accountable to ethical rules shouldn’t be that hard a sell.

There is a Pandora’s box worry here. We know that Republicans are always able to take any argument, put it in their “whataboutism” machine, and turn it back into the most bigoted version of the argument possible. “Shouldn’t gay judges have to recuse themselves from… gay cases?” You know they’ll say that. We could spend thousands of words debating the philosophy of bias with them, but I’ve found that the most effective counter to that is, “No, that’s dumb. Stop being so dumb.” We can’t slow down the whole ethics class just because some students are too homophobic to keep up. Again, every other court is subject to recusal guidelines, and those courts are capable of following them without descending into identity politics dystopia.

Ironically, passing ethics rules could actually result in the Court telling us that it is not subject to ethics rules because the Court has the final say on constitutional interpretation. But the new Democratic Congress holds the nuclear option—because Congress controls the budget. It’s a dangerous gambit, but that’s what Republicans did in Kansas. The Republican legislature held up the state supreme court budget to make the state supreme court do what it wanted.

Don’t get me wrong, holding funding hostage is a terrible attack on the independent judiciary. I don’t actually like saying it, because it sounds like the kind of thing somebody on the Committee of Public Safety might have suggested in 1793 in France.

But it’s also the kind of constitutional hardball Republicans have always been willing to play that makes Democrats squeamish. If Chief Justice John Roberts says that the Court will not be held to a minimal level of ethical oversight, I say you pull his funding and see if Roberts “independently” sees the wisdom of having an ethical center.

These are not normal times. We live in a world where one Supreme Court justice has been illegitimately appointed to a stolen seat. Another has been credibly accused of trying to rape somebody. A third, who himself was credibly accused of sexual harassment, operates while his wife lobbies for preferred outcomes.

The Democrats need to start acting like Sean Connery in The Untouchables: “He pulls a knife, you pull a gun. He sends one of yours to the hospital, you send one of his to the morgue! That’s the Chicago way, and that’s how you get Capone.”

Now, Democrats, what are you prepared to do?

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Katrina vanden Heuvel
Editorial Director and Publisher, The Nation

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