Unequal Justice: The US Supreme Court is Reactionary, But is it Also Corrupt?Besides their ultra-right rulings, the justices have a well-documented history of misconduct. This is part of the "Robert Bork’s Revenge" Dig series.
Under the guise of the regressive legal theory of “originalism,” the United States Supreme Court Republican-appointed majority has issued a series of ultra-right rulings on such vital issues as voting rights, gerrymandering, union organizing, the death penalty, environmental protection, gun control, abortion, and campaign finance. The end goal appears to be nothing less than the dismantling of the last vestiges of the New Deal and the Civil Rights movement.
But in addition to being reactionary, is the court also guilty of corruption? The answer depends on how we define and think of corruption.
In the strictest legal sense, the justices appear to be in the clear. Under federal law, “public corruption” is defined as “a breach of the public’s trust by government officials who use their public office to obtain personal gain,” asking for or receiving anything of value in exchange for an official act. In a 2016 decision reversing the bribery conviction of former Virginia GOP Governor Bob McDonnell, the Supreme Court narrowed the legal definition of public corruption to require strict proof of a “quid pro quo”—a swap of money or another benefit in return for a specific governmental favor.
But from a larger moral and political perspective, the court’s Republican majority is far from innocent. We expect all federal judges—and particularly those at the top of the judicial pyramid—not only to be law-abiding but to be free of political bias and conflicts of interest. We expect them to honor the enormous faith we have placed in them to use their lifetime appointments to be forthright stewards of justice and democracy.
That faith has been breached time and again.
Ethical Cannon 2A of The Code of Conduct for United States Judges requires those who don the robe to “respect and comply with the law,” and “to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Cannon 2B further advises that a “judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment.”
There also is federal statute, found at Title 28, section 455 of the United States Code, that requires judges to disqualify themselves when they have a personal bias or prejudice toward a party, or when the judge or their spouse has a financial interest in a proceeding, or they or their spouses have “any other interest that could be substantially affected by the outcome” of a proceeding before them.
The problem is that the Code of Conduct does not apply to the Supreme Court. And there is no mechanism for enforcing the disqualification criteria against a sitting justice. The Supreme Court stands alone as the only tribunal in the nation without any ethical accountability beyond impeachment, which for all practical purposes is an ineffective remedy. (Only one Justice in our entire history has been impeached—Samuel Chase in 1804—and he was acquitted by the Senate.)
The most obvious offender is Clarence Thomas, who has gotten away with flagrant misconduct as a result of this lack of accountability. Under the 1978 Ethics in Government Act, all high-ranking federal officials are required to file yearly financial disclosure statements for themselves and their spouses to safeguard against conflicts of interest. But for many years, Thomas failed to report his wife Ginni’s earnings on the mandatory annual financial disclosure forms that he signed under penalty of perjury, indicating that his spouse had no non-investment income. In fact, she was steadily employed in high-level jobs as a policy analyst and an outspoken conservative activist.
According to Common Cause, Ginni—who is also a lawyer—received more than $686,000 between 2003 and 2007 working for the Heritage Foundation. In 2011, claiming incredulously that he had misunderstood his reporting responsibilities, Thomas amended his financial disclosures, which can now be examined on the OpenSecrets.org website.
Thomas again generated headlines when he refused to recuse himself in cases involving the January 6 insurrection and Trump’s efforts to overturn the results of the 2020 election, despite Ginni’s prominent role as an organizer of the “stop the steal” campaign.
Thomas is not the only justice with a spouse whose work has raised conflict-of-interest questions. According to The New York Times, Chief Justice Roberts’ wife Jane has made millions in her career as a recruiter for high-profile law firms, some of which litigate cases before the Supreme Court. The Chief Justice, however, has never recused himself from a matter involving his wife’s recruits and has never disclosed her client list on his annual financial reports.
Additional potential conflicts of interest have surfaced around donations made to the Supreme Court Historical Society, a non-profit charity founded in 1974 to promote and celebrate the court’s legacy. Over the past two decades, the society reportedly raised more than $23 million from corporations, law firms, and other groups. The donors, in turn, receive special access to the Justices, who regularly attend the society’s annual black-tie dinner as well as lectures and other functions the society sponsors.
Among those who have attended society events and helped raise donations on its behalf is the Reverend Rob Schenck, an Evangelical minister and anti-abortion crusader. In a June 2022 letter to Chief Justice Roberts and in later interviews with The New York Times, Schenck claimed he was told in advance of the court’s 2014 decision in Burwell v. Hobby Lobby, which held that the owners of for-profit corporations may lawfully refuse to fund health insurance coverage for employees for contraception on religious grounds. The source of the leak, Schenck alleged, was Justice Samuel Alito, the author of the Hobby Lobby majority opinion.
Alito also has been at the center of the scandalous leak last May of the draft majority opinion in Dobbs v. Jackson Women’s Health Organization, which Alito wrote, overruling Roe v. Wade.
After an eight-month internal investigation, the court announced in January that it has been unable to determine the source of the leak. Rightwing zealots like Senator Ted Cruz, Republican of Texas, have suggested that a clerk for one of the court’s liberal justices is the likely culprit. Pundits on the left, such as former Secretary of Labor Robert Reich, have argued that Alito more likely was the source, seeking to lock in the votes of the Justices Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, who joined his opinion.
Alito, for his part, has denied all wrongdoing in connection with both the Hobby Lobby and Dobbs leaks. However, neither Alito nor any of the other members of the court were questioned under oath as part of the Dobbs probe.
Any discussion of Supreme Court corruption would be incomplete without mentioning the serious defects that attend the confirmation process for high-court nominees. The nonprofit watchdog group Citizens for Responsibility & Ethics in Washington (CREW) has reported that rightwing dark money groups such as the Judicial Crisis Network raised staggering sums to support the nominations of Gorsuch, Kavanaugh, and Barrett in an effort to push the court hard to the right. The dark money forces won, unbeknownst to the general public.
And then there are the Senate confirmation hearings, which are also critically flawed. The nominees testify under oath, but pay no price for making false, misleading, and possibly perjurious statements. Every member of the five-vote Dobbs majority arguably lied about their true views on the precedential value of Roe and the constitutional right to abortion during their confirmation hearings—Thomas in 1991, Alito in 2005, Gorsuch in 2017, Kavanaugh in 2018, and Barrett in 2020.
All six Republicans on the court are also current or former members of the Federalist Society, yet another fact that calls their impartiality into question.
Unfortunately, there is little that can be done in the near term to rein in corruption at the Supreme Court. Even a modest bill introduced by Senate Democrats to pass an ethics code for the court has little prospect of getting through the MAGA-dominated House of Representatives.
But we are not powerless. We may be subject to the court’s authority and bound by its rulings, but we can and must call out the court’s hypocrisy and its betrayal of democracy at every possible turn.Wait, before you go…
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