Members Only | November 28, 2022 | Reading Time: 4 minutes
SCOTUS is dirty. Let’s clean it up
Rightwing justices aren’t going to police themselves.
The recent story about leaked Supreme Court drafts isn’t about SCOTUS opinions getting leaked. It’s not even that the court is political. The story should be that the court’s rightwing is blatantly corrupt and basically exists outside of oversight or accountability.
When the draft of Dobbs, the case overturning Roe, was leaked, way too many people were more focused on the erosion of norms than the horrific content of the draft. Did leaking the draft serve the rightwing agenda of the right wing of the Supreme Court? Probably.
Why else leak it?
But the focus on the leak was what served their agenda, as it offered a distraction from the fact that the court was overturning important precedent by waving around some nonsense ahistorical argument that abortion wasn’t deeply embedded in the nation’s history.
There was concern that the leaked draft would dampen outrage on the left but, as recent midterm results show, that hasn’t happened. If anything, some Democrat politicians used the leaked draft as an opportunity to protect abortion rights before the ruling’s release.
There are no rules to break
A report by the Times suggests that Dobbs wasn’t the first opinion to leak. Anti-abortion activist Rob Schenck said he received information about the Hobby Lobby case, in which the Supreme Court ruled that private companies didn’t have to provide insurance coverage for contraception. Schenck he heard from conservative donors to his group Faith and Action after they’d dinner with Justice Samuel Alito.
This is a much more troubling leak, as it was done privately and in a clearly corrupt way. Schenck has previously asserted that his nonprofit engaged in overt attempts to influence conservative justices through dinners and vacations with wealthy donors to his nonprofit. The strategy was to use casual social occasions to influence rulings and gain access to information on pending cases.
While a sitting Supreme Court justice shouldn’t leak information about cases to donors or participate in obviously political events, they technically don’t break any rules when they do so. Supreme Court justices have no ethical code of conduct they must adhere to and pretty much entirely self-police themselves. There is a Code of Conduct for federal judges published by the Judicial Conference of the United States, which is presided over by Chief Justice Roberts, but it’s not binding for Supreme Court justices. It’s worth noting that the last time a liberal justice got in trouble for political action, conservatives were mad that Ruth Bader Ginsburg publicly expressed dislike of Trump – not really as bad as political dinners with donors.
Supreme Court justices need to exhibit “good behavior” and technically can be impeached for “treason, bribery, or other high crimes and misdemeanors.” The only justice to be impeached was Samuel Chase in 1805 for clearly political motives as Chase was a staunch Federalist who was pissing off Thomas Jefferson.
The House voted to impeach, but Chase was acquitted by the Senate, therefore not removed from the bench. Oddly enough, the majority of impeachment trials have been for federal judges and all eight people convicted of impeachment and removed were federal judges.
A bill has been proposed to require justices to write and adopt a formal code of ethics. The Supreme Court Ethics, Recusal, and Transparency Act outlines requirements for recusal and disqualification. It does not offer specifics for what would be in a code of conduct. It only requires that one be adopted through the Judicial Conference. The bill already passed the Senate, so we can hope for a lame duck adoption by the House.
We need court reform
We absolutely need more oversight for sitting justices but the obstacles to impeaching them show why we need to take confirmation hearings more seriously.
Brett Kavanaugh likely lied under oath during his confirmation hearing but people treated moderate questioning of a serious accusation like a witch hunt. Clarence Thomas called a similarly respectful hearing about his history of sexual harassment a lynching. These are serious job interviews, our last chance to vet nominees.
While we might not have recourse once they’re on the bench, senators need to take their roles in confirming these justices more seriously than a rubber stamp for the president’s political nominee.
While the Congress has little oversight outside impeachment, it can hold hearings and call justices to testify. Though unlikely to remove a justice, it would show that Congress is taking the corruption seriously and force the justices to speak publicly about their actions.
While Justice Alito has likely leaked information about at least two Supreme Court cases, Justices Thomas and Kavanaugh have probably committed impeachable offenses.
Clarence Thomas’ wife, Ginni Thomas, has been called in front of the January 6 committee for her possible (likely) involvement in the attempted coup. We know she sent text messages to Mark Meadows urging Trump not to concede and that she attended the “Stop the Steal” rally on January 6. She claims her husband knew nothing of these political activities but that strains credulity. Thomas also hasn’t recused himself from any of the cases concerning January 6.
As for Kavanaugh, his theoretically possible impeachable offenses occurred before he took the bench but lying before the Congress – committing perjury – is an impeachable offense. Sexual assault should be one too, but we all know how seriously that’s taken.
We need court reform.
We should expand the court to 13 to match the number of federal courts and more realistically pass a bill requiring a code of conduct.
While it’s only been done once, there’s no reason we can’t impeach one or more of the current justices for their blatant corruption.
And as many of my articles are going to end – all this will be easier if we manage to elect Reverend Warnock in the runoff in Georgia.
Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.