Podcast / Contempt of Court / Aug 8, 2023

It’s Time for Ethics Reform on the Supreme Court

On this episode of the Contempt of Court podcast, Congressman Hank Johnson and writer Emily Bazelon discuss fixes to the Court’s ethics problem.

The Nation Podcasts
The Nation Podcasts

Here's where to find podcasts from The Nation. Political talk without the boring parts, featuring the writers, activists and artists who shape the news.Start Making Sense hosted by Jon Wiener, Edge of Sports hosted by Dave Zirin, The Time of Monsters hosted by Jeet Heer.

How to Fix The Supreme Court’s Ethics Problem | Contempt of Court with Elie Mystal
byThe Nation Magazine

The Supreme Court has a serious ethics problem—actually, ethics problems. The justices have been dogged by allegations of corruption. They’ve been peppered with questions about how they make money. And then, of course, there’s the long career of Clarence Thomas, who, along with his wife Ginni Thomas, appears so brazenly corrupt that his scandalous behavior has made the very idea of Supreme Court ethics seen like a complete joke. 

I have long argued that Supreme Court ethics reform is as critical to fixing the Supreme Court as any of the more structural changes that reformers want to make—like increasing the number of justices or decreasing the length of time those justices serve.

On this episode of Contempt of Court, we’re going to talk about what can be done to stop these people from wallowing in the slop of their own graft. First up, we talk to New York Times Magazine writer and Yale Law professor, Emily Bazelon about what corruption looks like when it comes in the form of a Supreme Court justice. Then, we talk to Georgia Congressman Hank Johnson, who is one of the few lawmakers who is doing something about it.

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Justice Clarence Thomas.
Justice Clarence Thomas. (Photo by Jonathan Newton / The Washington Post via Getty Images)

The Supreme Court has a serious ethics problem—actually, ethics problems. The justices have been dogged by allegations of corruption. They’ve been peppered with questions about how they make money. And then, of course, there’s the long career of  Clarence Thomas, who, along with his wife Ginni Thomas, appears so brazenly corrupt that his scandalous behavior has made the very idea of Supreme Court ethics seen like a complete joke. 

I have long argued that Supreme Court ethics reform is as critical to fixing the Supreme Court as any of the more structural changes that reformers want to make—like increasing the number of justices or decreasing the length of time those justices serve.

On this episode of Contempt of Court, we’re going to talk about what can be done to stop these people from wallowing in the slop of their own graft. First up, we talk to New York Times Magazine writer and Yale Law professor, Emily Bazelon about what corruption looks like when it comes in the form of a Supreme Court justice. Then, we talk to Georgia Congressman Hank Johnson, who is one of the few lawmakers who is doing something about it.

The Nation Podcasts
The Nation Podcasts

Here's where to find podcasts from The Nation. Political talk without the boring parts, featuring the writers, activists and artists who shape the news.Start Making Sense hosted by Jon Wiener, Edge of Sports hosted by Dave Zirin, The Time of Monsters hosted by Jeet Heer.

Delegitimize The Supreme Court | Contempt of Court with Elie Mystal
byThe Nation Magazine

This is the eighth and final episode of Contempt of Court, our podcast series about reforming the Supreme Court. On this episode, we’re going to talk about the court’s only true form of power: legitimacy.

To discuss potential paths toward delegitimizing the Court, my first guest on this episode is Harvard Law School professor, Nikolas Bowie. He makes a compelling case that the people, through their representatives, should be the ones in charge, not the Supreme Court.

Afterward, Rhiannon Hamam, host of the fantastic Supreme Court podcast 5-4, has some thoughts on what’s happening on the ground, as people try to take back power from the Court through direct action.

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[00:00:00] Elie Mystal: If I won the Powerball, I’d move to an estate in Hawaii, hire a personal trainer and nutritionist, so I could live long enough to enjoy it all. And, buy a Supreme Court justice, probably Neil Gorsuch. Gorsuch isn’t the most corrupt justice, so he would probably be a little more expensive than some of the others. Brett Kavanaugh, for instance, could probably be had for season tickets, and an all-expense paid trip to Oktoberfest in Munich. But I know precisely what I was trying to get Gorsuch to do, making my investment more likely to pay out. 

[00:00:42] Welcome to Contempt of Court, a podcast from The Nation, sponsored by The New Press. I’m Elie Mystal, the justice correspondent for The Nation. This is the sixth episode in our eight-episode series about reforming the Supreme Court, what options we have, how close we are to accomplishing any of them. 

[00:01:04] Unless you’ve been living under a rock and the only news you get is from The Wall Street Journal, you already know that the Supreme Court has a serious ethics problem — actually ethics problems. The justices have been dogged by allegations of corruption, like Justice Samuel Alito taking fishing trips with Republican billionaires. They’ve been peppered with questions about how they make their money, like how Sonia Sotomayor makes money from her book deals, where John Roberts makes money from his wife’s amazingly lucrative career as a legal headhunter. And then, of course, there’s the long career of Justice Clarence Thomas, who, along with his wife, Ginni Thomas, appears so brazenly corrupt that his scandalous behavior has made the very idea of Supreme Court ethics seem like a complete joke. I have long argued that Supreme Court ethics reform is as critical to fixing the Supreme Court as any of the more structural changes that reformers want to make, like increasing the number of justices or decreasing the length of time those justices serve. The Supreme Court is literally the only court in the country that operates without a set of statutory ethics regulations, and its justices are the only ones who cannot be punished for ethical violations, unless Congress is prepared to put them through the full constitutional escape valve of impeachment, and remove them from the bench in that way. 

[00:02:40] There’s no way to even force these overlords to recuse themselves from cases where their families might be implicated, their financial interests might be threatened, or the rich people who pay for their vacations might stand to benefit. This should be unacceptable in a country that claims to be governed by the rule of law. And yet, this is the situation we’ve accepted for the entire history of the republic. Nine people who cannot be voted out of power are beholden only to their personal Jiminy frickin’ crickets, on the question of whether they should preside over a case, and nobody can force them to take a timeout. If this ethical free-for-all seems deeply flawed to you, you’ve come to the right place. 

[00:03:31] Today, we’re going to talk about what can be done to stop these people from wallowing in the slop of their own graft. First up, I’m talking with New York Times Magazine writer and Yale Law Professor Emily Bazelon, about just what corruption looks like when it comes in the form of a Supreme Court justice. Then I’ll speak with Georgia Congressman Hank Johnson, who was one of the few lawmakers who has cared about this issue for a very long time. 

[00:04:01] I am joined right now by one of the most important, one of the best legal scholars, legal writers, person who thinks about these issues: Emily Bazelon. She is the New York Times Magazine staff writer. She’s a fellow at Yale Law School. She’s just one of the smarter people that you will have the opportunity to talk to about this stuff. Emily, thank you so much for sharing your time and your brain with me on the show. How are you?

[00:04:28] Emily Bazelon: I’m good. It’s such a pleasure to talk with you always. I don’t deserve all those accolades, but I’m so happy to talk with you.

[00:04:35] Elie Mystal: Thank you so much for sharing your time. Okay, so today we are talking about something that has kind of been in the news a lot lately: Supreme Court ethics. Now, people like Emily and I who kind of go back a long way have generally understood that the Supreme Court doesn’t operate with, let’s say, statutory ethical rules. That’s not how the court works. The court is the only people who can punish the court, right? Like the way that our constitutional structure is set up, there’s no way to punish a Supreme Court justice, absent the constitutional process of impeachment. And so having statutory ethics rules where some kind of outside organization or third party congress would punish the Supreme Court for ethical violations, kind of has some constitutional questions, right? So one of the ways that we’ve handled this in our nation’s history is to let the Supreme Court kind of police itself. Recently, and thanks mainly to the soon-to-be Pulitzer Prize-winning work of ProPublica, people have started to realize that perhaps the Supreme Court is not the best at policing itself. And so that means that people are a little bit more interested in ethics reform. Emily, I want to start here: the idea that the Supreme Court can police itself. Do you think that’s true? Do you think that’s working? Not in terms of like how the justices see themselves, but in terms of how the American people see the justices?

[00:06:19] Emily Bazelon: I don’t think it’s working, and I think it is very damaging to the court’s appearance, to its public approval ratings, which we see at its lowest ebb since Gallup has been tracking in the modern era. And I think it’s genuinely damaging to the court. Like I don’t think it’s just an appearance problem. I think it’s a real problem. And I mean, the basic issue here is just embedded in your question, like, when does it ever make sense to have people who have a tremendous amount of power over whom there is no oversight, right? I mean, we have all kinds of phrases for this, like you need watchdogs to watch the watchdogs, and you always need to have some check on power. The American constitutional system is really like set up all about checks and balances, right? And yet, there are none, and it just looks to me like a lapse on the part of the framers. And I think one of the ways you can think about this is that the framers just didn’t envision the Supreme Court having the kind of power that it has. At the nation’s founding, it just seemed absolutely like the weakest branch. It wasn’t even clear that people would be super into being Supreme Court justices, right? You have to ride circuit, you have to literally like ride your horse around to different colonies, sitting on really boring appeals court cases. And the power and status of the court, the way in which life tenure has turned into decades and decades, and then this very basic problem of: What do you do about ethical lapses and violations when the body itself has no oversight, has no way really to effectively police itself? I just don’t think they thought about it.

[00:07:53] Elie Mystal: I think it’s one of the biggest constitutional flaws that we have. And I do agree, Emily, it goes back from a simple oversight, in terms of the Founding Fathers and the authors of the Constitution. They just, they never thought the court would be this important. And so they never thought it would be so important to have it adhere to basic ethical strictures. Long before ProPublica, long before the reporting about the trips that Clarence Thomas has taken without disclosure and Sam Alito has taken without disclosure, long before Jane Mayer’s excellent reporting about the corrupt alliances and liaisons between Clarence, Ginni Thomas, and the entire conservative kind of media movement — I became interested in ethics reform after Brett Kavanaugh. After Brett Kavanaugh was elevated to the Supreme Court, there were 83 ethics complaints lodged against him, based on his time as a DC circuit judge. I don’t know what’s in these ethics complaints, they were not made public, I just know that there were 83 of them, right? And it was given to a circuit court judge to investigate these ethical charges. And the judge had to throw all 83 complaints out, not because they exonerated Thomas, not because they implicated Kavanaugh, but simply because by the time the judge got the cases, Cavanaugh was already on the Supreme Court. And the judge, I think, rightly said, there is no mechanism for me as a circuit court judge to punish a Supreme Court justice. And that I think, unfortunately, in the context of our system is probably the right legal answer. So big time Yale fellow scholar person

[00:09:44] Emily Bazelon: Uh huh, keep going.

[00:09:45] Elie Mystal: How do we get around that? How do we get around this kind of, what we’ve called the constitutional oversight, whatever. How do we get around the fact that to punish the Supreme Court for ethical violations, how do we get around the separation of powers, as it’s currently understood and applied by judges all across the country?

[00:10:05] Emily Bazelon: I mean, I think the easiest mechanism is for the justices themselves to bind themselves to a set of rules and to some kind of oversight. So for example, there is already a code of judicial ethics that binds the rest of the federal judiciary. The Supreme Court can expect that. I mean, honestly, Elie, even if they just did that, without creating an oversight mechanism, I think it would be somewhat helpful, because then at least you have this clear set of standards. Having said that, you also have the Ethics and Government Act, which was passed post-Watergate in the 70s, which, I think it is pretty clear, binds the justices, and they would beg to differ since it comes from Congress and the president. And, you know, I think the Clarence Thomas and Justice Alito trip seemed to clearly fall within the scope of that act, and that does not seem to have stopped them. Nonetheless, at least they could start by binding themselves to the code of judicial ethics, and then they could create their own enforcement mechanism. 

[00:11:07] So for example, they could create a rule where they sit as a body and if everybody unanimously decides that someone should recuse themselves after that justice has refused to do so, the rest of the justices could force a recusal. That’s only a partial answer, but like, for example, that could have addressed this issue of Clarence Thomas voting in the case about disclosing evidence related to the January 6 uprising, in which it turned out that his own wife’s texts were in the pile of evidence. He should not have sat on that case, I think we can agree, and so that — if all the other justices could say, hey, wait a second, given Ginni Thomas’s role, it’s not okay for you to hear this case. Maybe that would be effective. 

[00:11:53] Another mechanism I personally like better would be for the justices, again, as a body, to agree that another set of judges get to make these decisions and make other decisions about judicial ethics questions on the court. So you could have retired appellate circuit court judges who make this call, or current circuit court judges. One of the things that really bothers me about this whole topic is this notion that the Supreme Court justices are so supreme that they can’t hand over any aspect of power over themselves to another set of judges. And that just strikes me as very wrongheaded. I understand why they want to present themselves that way, why it’s in their personal interests, or their view of the Supreme Court’s institutional interest, to be really, I think, self-aggrandizing by holding onto all that power. But I don’t think it’s good for them or for the country, or in some sense for the court as an institution, because then these integrity questions come up, over and over again.

[00:12:50] Elie Mystal: For longtime listeners to this short ass podcast, you guys might remember that this came up a little bit during our episode on term limits. And one of the benefits of term limits, potentially, is to create a pool of retired former Supreme Court justices who could, as Emily is suggesting, kind of step in, perhaps on some of these ethical questions. But I think also, it gives you a pool of justices to potentially pull from, should a Supreme Court justice have to recuse themselves. One of the arguments that the justices themselves make for not recusing — and just to be clear, it is a terrible argument that I’m about to say, but I’m just telling you what they would tell me — is that, well, you know, there’s only nine of us. And when one of us is recused, I mean, then we have eight, we can have ties, and it’s — first of all, I don’t have problems with that, like ties are — think of me more as an English Premier League guy than an American baseball guy on this. Like ties are fine, actually. But beyond that, if you’re really worried about like decreasing the number of justices available to hear a case, having a pool of former Supreme Court justices that you can call up when Clarence Thomas has to recuse, when Ketanji Brown Jackson has to recuse because her university’s implicated in the case at the bar, that would be another kind of benefit to having justices rotate off of the Supreme Court. 

[00:14:25] But Emily, I want to bring up this point that you were making about having some kind of system where the justices themselves bind themselves, I think, is the way that you put it, to an ethical rule. What confidence do we have that they would follow it? Because I think — maybe put it like this, I think one thing that people get wrong about ethics reform is that in the media, in the Wall Street Journal editorial pages, and Samuel Alito’s speed dial that he has to The Wall Street Journal editorial pages, they act like this is liberals attacking conservatives because liberals don’t like their decisions when we talk about ethics reforms. And I would just like to point out that, as far as I’m looking at the field, I’m not fighting against six conservatives to get ethics reforms. I’m fighting against nine Supreme Court justices to get ethics reforms. Because from where I sit, the three liberals are in the same tank as the conservatives in terms of their resistance to reform. I’m not saying they’re in the same category in terms of their apparent corruption thingies, right? I think if Sonia Sotomayor was taking —

[00:15:40] Emily Bazelon: You don’t think Harlan Crow is also sending Sonia Sotomayor off to Bali or whatever?

[00:15:44] Elie Mystal: Right, I think — but put it like that, I think if that was happening, we’d know.

[00:15:47] Emily Bazelon: She could use a vacation.

[00:15:50] Elie Mystal: So I’m not impugning the character of the liberal justices in the same boat as I would, no pun intended, as I would put Clarence Thomas. But in terms of their resistance to reform, all nine look the same to me. Do you have a sense that there’s any justice on the Supreme Court that is actually willing to have their power checked on this issue?

[00:16:14] Emily Bazelon: You know, the justice who has the biggest incentive is Chief Justice Roberts. The court has his name on it. It’s, in a lot of ways, his reputation that’s the most at stake. And I would imagine that he is embarrassed by what is going on with the Thomas and Alito issue and wants to address it. Like I just — if you are someone who would not go down this route as a judge, and you have a sense of the appearance and the reality of impartiality being bedrock to your professional values, this is not good. You don’t want this to continue. And all of the justices have an incentive in Americans believing in the integrity of the court, right? So I’m not sure — I think they’re all resisting internally. Whether they’re willing to actually do something about it and potentially alienate some of their colleagues and take this on, that’s a different question. And I don’t have any real window into that. But I guess in my view, just imagining the human psychology of this, that’s the part that I would imagine would weigh on honestly all seven of the others, right? If you’re not actually like on the jet plane, and you think that that kind of — like it’s intuitive to you why that kind of behavior is problematic, then it would actually seem to me like, yeah, you’re up for this because you are recusing yourself in other cases. Now, but again, whether you want to take on your colleagues, whether the group can figure out a way to take a stand that isn’t seen as selling Alito or Thomas down the river, that’s another problem, because they do all have to work with each other. And to some degree, they have some internal collegiality and camaraderie that seems to override a lot of considerations that you and I might think were more important, right? I mean, when you had, like Kagan — well, Kagan has done this less, actually. But you know, last summer, I think we had Sotomayor kind of sticking up for the integrity of the court institutionally.

[00:18:20] Elie Mystal: And Thomas specifically.

[00:18:21] Emily Bazelon: And, exactly Thomas, she stood up for him. And former Justice Breyer did this. And it just seemed, to me, at least as an observer, like, really, that’s what you want to say right now? But they did.

[00:18:32] Elie Mystal: It certainly feels to me that the nine justices see themselves as more similar to each other than they feel similar to like the rest of the American people. Part of that, perhaps, is just like foxhole mentality. But as longtime listeners will know, I think lifetime power is a mistake. I think it changes your brain in like important and anti-democratic ways. One of the issues here with ethics reform is that we’re also very sensitive or concerned about money that is seemingly being funneled to Supreme Court justices through their spouses, who, mostly in the cases that we’re concerned about, through their wives. However, we also are sensitive and kind of understand the fact that their wives are allowed to have jobs and careers and make money and make gobs of money. Certainly, I can speak from some experience here, where — folks, the writing and podcast industry does not pay perhaps what you think it pays. Like, my wife pays our mortgage and whatever, like I am, as she puts it, sometimes her social justice offset, like.

[00:19:48] Emily Bazelon: It’s like your carbon offset. I like that. That’s good.

[00:19:52] Elie Mystal: So I am certainly a fan of spouses and wives making a lot of money and thus being able to bankroll some other activities. How do you work through that? Because I think it is a legitimately difficult issue where you don’t want the kind of, let’s say, Ginni Thomas situation, where it certainly seems like she is taking money that should be disclosed and that her activities should implicate Thomas’s ability to sit on certain cases. But by the same token, she’s a woman with a job who has interest in whatever, and can you really treat them as a unit in this issue? Like, how do you work through some of these issues?

[00:20:35] Emily Bazelon: I mean, the problem with the Thomases is they’ve gone so far beyond what seems like a prudent way to handle this, that it’s almost like the spousal feminist issue has gotten lost. I mean, I think, look, it’s not just your spouse, it’s anyone in your family. If your family is implicated in a decision you make as a Supreme Court justice, and that could be in your head or in your heart, as you’re deciding how to rule, that’s against the rules. Like that’s not okay. And you should want to be purer than the driven snow on this, right? You should want to take extra steps to recuse yourself if you’re in that position, because you would never want to threaten that person’s career or make it seem as if they’re lacking in integrity or that you are. So I just feel like, in some ways, it’s not that hard, right? I mean, sure, Ginni Thomas can have whatever political lobbying advocate consultant career she wants. But if there are cases in which her personal interests are on the line, her husband should make really, really sure that he is not participating. And it is not enough to say, I can separate this in my head. That’s not the acceptable standard, because it’s not nearly, are you actually doing something that could be corrupt? It’s the appearance of impropriety. That’s what we bind — that’s what we should, the standard we should hold judges to and that they should hold themselves to.

[00:22:01] Elie Mystal: Yeah, I mean, look, I try to make a bright line distinction between the activities of Ginni Thomas and the activities of Jane Solomon, John Roberts’s wife. I mean, there have been stories about how she is making gobs of money as a big law headhunter. And we can all speculate that she may or may not be able to make that money if her husband didn’t happen to be the Chief Justice of the Supreme Court. You know, I don’t find that Jane Sullivan story — I don’t find that as pure as the driven snow. Let’s put it like that. But I don’t think that that means John Roberts is corrupt, right? I don’t think that — I have yet to see the case where I think that John Roberts should have recused himself because of some activity or professional behavior of Jane Solomon. I don’t see it, right? It just hasn’t happened. Ginni Thomas, totally different story. And I think that I kind of agree with you, I don’t think that it’s a hard line to draw. I just do think that like people should be sensitive to this issue. So I wanted to bring it up in the context of really trying to bring the Supreme Court to heel in terms of the amount of outside influence they allow into the process. And so that’s where I want to go next, because we’ve been talking about mainly the money, because the money is what you can follow, and the money is the obvious thing, and whatever. But there are also, you know, I think real, live ethical issues when it comes to the kinds of influencers that these people surround themselves with. And for that, I’m thinking about Sam Alito’s dinner parties, where he was, you know, potentially leaking the Hobby Lobby decision. What, if anything, can we do as a society about the various hangers-on, who seemed to have access to Supreme Court justices for advocacy purposes, access that you and I and most regular Americans can’t begin to have?

[00:24:00] Emily Bazelon: So I want to separate two things here. The issues with Justice Alito, there’s this question of whether he leaked information about Dobbs, the abortion decision last year. And I don’t know if that’s true or not, he denied it. If that were true, that would be crossing a line that the court has committed to not crossing. So that, I think, is like, would be a real problem. This question of whether hobnobbing, socializing, being in a milieu that’s like, very conservative or very liberal is harder for me, because people do tend to hang out with other people who agree with them, right? And I mean, I think that you could very plausibly draw the same kinds of lines about just like who people choose to hang out with, probably about any of the justices. I again, I don’t know, but I would be surprised if, you know, before she died, Ruth Bader Ginsburg spent a whole lot of time with people who disagreed with her politically, right? I mean, we know that she was spending a lot of time with Nina Totenberg, who says, oh, we never talked about the court’s decisions, and those weren’t political relationships or friendships. But I mean, it does seem like they had a very close relationship, unusual for a justice and a journalist, and also that that lines up with the justice’s and Totenberg’s liberal politics. So it’s harder for me to quite — well, I guess I will say, ideally, I think the justices would have very broad social lives, writ large, in which they are spending time with people who differ from them in terms of class and race and life experience and political beliefs, and that they would deliberately cultivate those relationships, because it’s very important to come down from Mount Olympus and actually talk to lots of people and get their views and understand a little bit like how Americans think and think differently from you. But I really doubt that that happens very much for any of them because they live in a hyper elite world. And because it’s just much more comfortable and easy to spend all your time with people who agree with you and tell you how great your views are. And we’re all a little bit increasingly guilty of that in the United States right now, right? We all live in this polarized universe. So I guess I have an ideal way of thinking about it that would apply to all of them, regardless of politics. And then the reality is, I bet they mostly just disappoint us on this front.

[00:26:31] Elie Mystal: I guess I would look for a more brighter line distinction with like, hang out with whoever you want, but whoever you hang out with, you can’t sit on their case.

[00:26:39] Emily Bazelon: Oh, yeah. 100 percent. No, no, I’m not arguing with you about that. I mean, the idea that Justice Alito thought it was okay to rule on, you know, the hedge fund billionaire Paul Singer’s case implicating his business after taking a free flight to Alaska — that I don’t think is okay. I don’t mean to be excusing that.

[00:26:59] Elie Mystal: It really to me goes back to this issue of recusals, where the justices act like recusing themselves requires some bar, some high bar of like bias or implication. And I think the recusal bar should be like, extremely low, right? Like was the person in front of you, the litigant in front of you, did they also used to be your doorman and say hi to you every day? Yes, then get off the case, right? It’s not — it should be a really low — hey, I recognize you. You’re the guy at my McDonald’s every Tuesday, great. Get off the case. Like it’s not, it shouldn’t be hard. And I think the only reason why it is hard for them is because they think they are so important.

[00:27:41] Emily Bazelon: Well wait, if they — so you talked before about this problem before for a tie, if one of the nine is not sitting on a case. Well, elevate someone from the circuit courts to hear the case with you. That happens routinely on the circuit courts themselves, where they will call up a district court judge to be part of a three judge panel, or they’ll bring someone from the Seventh Circuit to sit on a Fourth Circuit case. The Supreme Court doesn’t do that. And I just think it’s a mistake. Like it’s, again, it’s treating themselves as incredibly powerful and incredibly precious in a way that I just don’t think the Constitution necessitates. Or anything else. I said the Constitution because it’s important, but like, there’s no reason for it. But I don’t know, it doesn’t make sense to me.

[00:28:26] Elie Mystal: I am totally with you there. Emily Bazelon, thank you so much for your time. I really appreciate it.

[00:28:31] Emily Bazelon: Thank you. It was such a pleasure to talk with you, as I knew it would be.

[00:28:42] Elie Mystal: Houston, we have a problem. And everybody, except the people who can afford to pay the justices’ fees, can see what that problem is. But not everybody is on board to do something about it. One person who does want to solve this problem is Georgia Congressman Hank Johnson. Congressman Johnson has a bill, right now, that would direct the Supreme Court to come up with its own ethics rules. I talked to Congressman Johnson about his bill, and about how to get Congress to pass it over the objection of the entire Republican Party. 

[00:29:21] I am thrilled to have you on. Thank you so much for taking some time today. How are you doing, sir?

[00:29:26] Hank Johnson: I’m doing great, Elie Mystal, and I’m honored to be on your show. Thanks for having me.

[00:29:30] Elie Mystal: Thank you so much for coming on. I want to jump right into it. We’ve talked already about ethics reform, the need for ethics reform. People understand that the Supreme Court is, let’s say, a little bit corrupt these days, right? The reporting from ProPublica about the trips and the vacations and the yachts and the resorts has made people, I think, appreciate a little bit more than perhaps before, that these nine Supreme Court justices are not doing a great job at policing themselves. So what can Congress do to, shall we say, help them, see the light, come to the point where they have a basic ethical structure? I know you have some ideas on this, and some actual solutions, so please tell people what you’re actually working on to address this problem.

[00:30:28] Hank Johnson: Well, thank you. I think people can see that what we’re dealing with with the Supreme Court now is just a total, out of control body that has seized power for itself, while exempting itself from the normal restraints that the other two branches of government must operate under. And when I say restraint, I’m talking about ethical conduct. I mean, in the legislative branch, the only thing I can do with someone in terms of taking a meal, is to make sure that that meal comes only on toothpicks, can’t sit down, no other congressperson can have a sit-down meal at a swanky restaurant with anybody, whether or not they have business before Congress or not. It’s just against our rules of ethics. And then we have to report all gifts that exceed $49 or more in value. And we are barred from taking, you know, trips without congressional approval, without the Committee on Ethics’ approval. And we certainly can’t fly around on a charter jet or on a private jet. Even if we report it, we still can’t do it. One of the things that Congress can do is to start paying attention to the Supreme Court. For far too long, we have lifted our gaze away from the operations of the courts. And we’ve regulated ourselves, we’ve regulated the executive branch, but we’ve done nothing for the courts. We’ve allowed the courts to pretty much operate unencumbered by legislative oversight. And so that’s why I filed the Supreme Court Ethics Recusal and Transparency Act, so that we can put some regulations on the judicial branch, particularly the Supreme Court, and bring it into the same format that the other branches of government and lower federal court judges have to abide by.

[00:32:44] Elie Mystal: Congressman Johnson, I feel like I know the answer to this, but I feel like it’s important for people to hear you say it. Does your answer about Supreme Court ethics change depending on which justices are being unethical? For instance, if Ketanji Brown Jackson, the newest Supreme Court Justice, if she was taking charter trips to Indonesia with Oprah Winfrey — apparently they’re buds, Oprah gave her flowers. You know how I know that Oprah gave her flowers? Because Jackson disclosed that Oprah Winfrey sent her a $1,500 bouquet of flowers. So if Oprah took Justice Jackson to Indonesia for free, and didn’t disclose it, would you also have a problem with that?

[00:33:28] Hank Johnson: Yes, certainly, I would have a problem with that, same way I had a problem with Ruth Bader Ginsburg going to dinners with folks who she did not report. And so the code of ethics would apply to each and every justice, regardless of who appointed them, regardless of their ideological bent.

[00:33:49] Elie Mystal: Now, as I read the bill, as I understand the proposal, this is not a proposal where Congress writes the ethics rules for the Supreme Court. You’re still fundamentally asking John Roberts, Elena Kagan, Samuel Alito, to come up with their own ethics rules and bind themselves to it. Am I correct about that?

[00:34:10] Hank Johnson: That’s correct. It’s not rocket science to do it. The court could simply adopt the same code of ethics that applies to the lower federal court judges, and adopt it so as to apply it to itself.

[00:34:25] Elie Mystal: One benefit of doing it the way that you’ve suggested is that this avoids any suggestion of a constitutional issue. One of the things that Roberts and his defenders will say is that Congress does not have the power to impose ethical rules on the Supreme Court. Your bill does not involve Congress imposing ethical rules on the Supreme Court. It involves the Supreme Court imposing ethical rules on itself. Is that right?

[00:34:50] Hank Johnson: Actually, it doesn’t even go that far, Elie. It just requires that they promulgate a code of conduct for themselves, it doesn’t mandate that they accept it. But one would think that if you promulgate a code for yourself, you will adopt it. And this is putting pressure on the court to do something that the court should have already done itself. And more and more, the people of this country want to hold the court accountable, and the court wants to hold itself above accountability. I guess we need to have louder voices from the public, we need to have louder voices from the media, the press. And we certainly need Congress to assert its power, its authority, and its responsibility in the management of the operations of the court system and the United States Supreme Court itself.

[00:35:52] Elie Mystal: My question, then, is what happens when Roberts just says, yeah, no, right? Like the bill fundamentally puts the power in Roberts’s hands, asks him to do what I would term as the bare minimum of a public official, right? Put it like this, the bill is a great suggestion, but you don’t actually need to pass the bill for Roberts to do this on his own. But Roberts has decided not to do this on his own, the Supreme Court has decided not to do this on their own. What other tools does Congress have to force them to do it?

[00:36:27] Hank Johnson: Well, you know, this is why we need structural reform at the United States Supreme Court. No longer business as usual, we need to add seats to the court so that we can alleviate the extremism that is now dominant on this court. And in addition to expanding the court, we need to impose term limits on Supreme Court justices, so that we can make sure that this kind of situation does not happen again. Congress has the power to do so, and we need to start doing it.

[00:37:05] Elie Mystal: Ethics reform is one of those reform ideas that’s really focused on keeping the Supreme Court legitimate in the eyes of the American people. And so from your perspective, you know, one of the reasons why I like talking to politicians is that you guys actually have to talk to the people, you have to get out there and get on the stump and get into your district and listen to what the people are saying. I get to sit on my desk in Westchester. Do you feel like there’s a crisis of legitimacy on the Supreme Court, and is that showing up kind of in your district, amongst the voters that you talk to?

[00:37:43] Hank Johnson: Well, people have a basic respect for authority and for the rules of conduct in this country. Most people try to live in accordance with the rules. But when they see that the rules are not being fairly applied, or when they see that a rule is not fair, because it benefits one side over the other, then people start to say, the hell with the rules. And when you have that happen, Elie, you have anarchy. And so that’s what setting up in this country at this time, unbeknownst, or I should say, unappreciated by the members of the highest court of the land — they’re setting up a situation where the people will soon say, I don’t care what the Supreme Court says the law is, I’m going to do it this way. I’m going to challenge authority. That’s where you have a revolution taking place. And it’s unfortunate that we as a civil society, a democracy, are at cross purposes with ourselves now. We got one group that wants to retain all power for itself, and that’s basically the top 1 percent in this country, maybe the top 10 percent. It’s all based on wealth. And people are demanding equity. They’re demanding equality. They’re demanding fairness, and they’re demanding justice. And they’re doing it within the context of a democracy. And if the court decides to change up on the rules, and tries to pull the wool over the people’s eyes, and we can see what’s happening, and we got people like you that will refuse to be silent, and will get the word out to everybody else. I mean, there’s a recipe brewing. 

[00:39:53] And then we got folks on the extreme like Donald Trump, who by the way, appointed three of the nine justices that we have on the bench. This man has done, in addition to January 6, what he has done on the court has been a slow-moving January 6, but just as deadly, perhaps even more deadly to our democracy than the physical activities on January 6. And so we have to have a court that appreciates where it fits in society, and how it views itself as a co-equal body, not as a superior body, and not as a body that seeks to maintain the status quo of 250 years ago with this originalism dogma that they try to put on us, how they decide constitutional issues based on originalism, trying to put us back 250 years ago. The more we go that way, the stronger the urge will be to rebel, and to move past the rule of law and start applying rules as we see fit. That’s what the Supreme Court is doing. That’s what it’s leading us to. And it is highly detrimental to freedom and justice and liberty in this country. It’s destroying our democracy. And until we can do Supreme Court reform, that’s the road that we’re going to be headed on.

[00:41:25] Elie Mystal: Man. I mean, wow, that’s a really fascinating point. How close are we in Congress? Because it’s always shocking to me, that you cannot get 435 congressmen to support ethics reform in any way. Like, I don’t understand how you are an elected official, and you vote against ethics reform, right? Certainly, when it comes to the Supreme Court, we know that there are partisan divides, in terms of whether or not taking undisclosed trips from your rich billionaire friends is good or not. But certainly, it feels like this bill should be more popular than it is. So like, how popular is it? How close are we? And what do we — what do the people need to do to make sure that their congressmen are on board with this reform?

[00:42:10] Hank Johnson: Well, I’ll tell you, Elie, Congress moves slower than molasses on most things. But I’ve seen, in my 17 years in Congress now, that there are some anomalies that occurred. Sometimes, Congress can pick up and move quickly to address an issue. And I think that time may be coming with Supreme Court ethics reform. But as it stands now, we still have a lot of work to do, we have 78 co-sponsors. Of course, you need 218 votes in order to —

[00:42:50] Elie Mystal: Make it happen.

[00:42:51] Hank Johnson: Yeah, you have to make it happen. But beyond that, even to get to the floor, you’re going to have to have Democrats in control of the House of Representatives. So we must take back the House of Representatives in order to have a chance of passing Supreme Court ethics reform. Republicans like everything the way that it is now, because they built the court, it’s been a 40-year process. They’ve arrived at the kind of court that they want and that they need. They don’t want to do anything to change it. And so we’re going to have to change the complexion of Congress. And we’re going to have to put Democrats back in control, so we’ll have an opportunity to pass Supreme Court ethics reform.

[00:43:40] Elie Mystal: Do the Republicans you talk to — because I know you have to talk to them, I luckily don’t — but do the Republicans you talk to have any intellectual pushback on this bill? Do they have any — I mean, do they have an argument right? Or is it just corruption all the way down? Is there any kind of, is there any room, I guess, to convince them through the normal structures of logic and debate? Or are they just kind of in it to win it with Clarence and Harlan?

[00:44:10] Hank Johnson: You know, I’ve not talked with a single Republican who is interested in Supreme Court ethics reform. It goes against what the Trump MAGA Republican Party stands for. And so there’s not a single Republican with the courage to stand up and say that, yes, it’s logical and reasonable and rational that every federal judge, whether they be a judge, a mere judge, or whether or not they be a justice, or even a chief justice on a Supreme Court. It’s certainly logical for them all to be bound by the same code of ethics that 99 percent of all federal judges are bound by. Why would we exempt just a small cadre that happens to be the nine at the top? Those are the ones that need the ethics legislation the most. They’re the ones, they’re the highest court in the land, they should have the highest ethical standards. And they refuse to adopt one for themselves, and we have the power to do so. Why wouldn’t we move forward?

[00:45:28] Elie Mystal: I mean, that is, that is sad. But that is also, you know, I want to put that on a bumper sticker for 2024. That’s why your votes matter, not just at the top of the ticket, but all the way through. Because as the congressman is saying, right now, there is no Republican support for even basic ethics rules. Congressman Hank Johnson from the great state of Georgia, thank you so much for your time. Thank you so much for your leadership and passion about this issue. I really appreciate it.

[00:45:53] Hank Johnson: Thank you, sir. Keep doing what you’re doing.

[00:45:59] Elie Mystal: So what now? Given the Republican resistance to ethics reform, my best plan of attack remains the Powerball. See, the trick that Republican billionaires have figured out is that you don’t need to buy a justice’s vote on a case by case basis, like a workaday sap, if you’ve put in the time to influence their thinking to the point where they reflexively look out for your interests, as if it was their own idea. You don’t have to tell them how to vote, if they already think about the world like you want them to. The point of taking these guys on vacation isn’t to spend a week giving them the hard sell about your pet issue. The point is to make them think that the only people and perspectives that matter are represented by you, and the wealthy friends you bring along. The hard sell is just the exclusion of everybody else. 

[00:47:00] So, if I had Harlan Crow money, which justice would I buy? I wouldn’t have any luck with Clarence Thomas. I’m black. And Thomas has already decided that means my perspective doesn’t matter. He’s already concluded that the important world is the one white people have made for themselves, and the racial minorities who most want to be like them. I could take him on a Middle Passage to try to reconnect him to the pain of our ancestors. And that fool would hop off the boat, get right back on a white man’s super yacht, and say, worth it, at least it got me out of Africa. But I could invest in a guy like Neil Gorsuch. He already thinks that Native American people are people. I would just need to spend enough time and money to make him think that other non-white people deserve the same white people rights. I strongly suspect that Gorsuch has never even had dinner at a predominantly black table. That’s not a joke. I literally do not think that dude has ever broken bread with us as the only white guy in the room. Much less spent a full calendar week around black folks who weren’t bringing him beach towels. I swear, I’d spend a million dollars opening up a black dude ranch as a front, just to have somewhere to take his Western ass. Hmm, who was that sable Adonis, roping that steer? Oh, that’s my friend, Lebron James. I hear he does a lot of charity work with underprivileged youth in Ohio. You should go say hi, Justice Gorsuch. It would be money well spent.

[00:49:01] Enough Mr. Nice Guy. Next week, we’re going to talk about jurisdiction stripping. That’s the legal equivalent of burning these people out. This show was produced by Babette Thomas, Ludwig Hurtado, and Lizzy Ratner.

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Elie Mystal

Elie Mystal is The Nation’s justice correspondent and the host of its legal podcast, Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press. Elie can be followed @ElieNYC.

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