I have nothing but great respect for the Judiciary at all levels of government. At their best they serve as neutral arbiters of disputes between individuals, and ensure that the rights of an individual accused of a crime and looking at the full weight of government authority arrayed against him are safeguarded.
The Supreme Court and other courts throughout the federal and state systems were thought by the framers to be the least political of the branches of government. And to prevent any possible abuses of the Court’s power, it has no independent power to enforce its judgments.
From The Federalist 67 to Alexander Bickel’s The Least Dangerous Branch, the courts have been viewed as the forum impartially and dispassionately dispensing justice under the rule of law. While some parties, and observers for that matter, might not care for a particular outcome, they will likely – perhaps grudgingly – respect it if everyone believes that the outcome was fair and just.
In this way, the “Least Dangerous Branch” of the government is transformed to a bulwark of democracy, ensuring that we are a nation of laws and not of men. This is the very foundation of our democracy.
This is all well and good as long as we believe that the Court is honest, impartial, and dispassionate in handing down its judgments. As a (former) legal professional, I could argue in good faith against a judgment about which I disagreed, as long as I believe that the judgment handed down was reached in good faith.
Reasonable people can reasonably disagree. Note that many of the Courts’s opinions are often accompanied by Concurring opinions (affirming the majority’s outcome but on other bases), and dissenting opinions that disagree with the majority’s judgment and the legal basis on which it is based.
And over time, dissenting opinions become the basis for future majority opinions. Take the instance of Justice John Marshall Harlan who in his lone dissent in Plessy v. Ferguson in 1896 (upholding the separate but equal doctrine justifying racial segregation) stated that the Constitution was colorblind. By 1954, in Brown v. Board of Ed., the Court held that separate but equal facilities, in this case public schools, were inherently unequal, embracing Harlan’s admonition that the Constitution was clearly colorblind. Over time, dissents can contribute to the legitimacy of the Court.
As we look at the Court’s outputs, it’s important the keep in mind that the Court is comprised of human beings. Each Justice has their own viewpoints and biases, just like the rest of us. They read the news, associate with friends and families, have outside interests, again, and consume and digest information from a variety of sources just like the rest of us.
At the Court, the Justices are independent actors in a collaborative effort. This can lead to some seemingly strange friendships. Although they had polar opposite constitutional views, Antonin Scalia and Ruth Bader Ginsburg cemented their friendship over their love of opera and fine dining. Go figure.
On the other hand, based on their written opinions, there seemingly was no love lost between Scalia and Blackman.
Historically, while not always agreeing with its decisions, Americans have held the Court in high regard. Today, only 30% of us have confidence in the Court. Why?
Part of it could be a reaction to some of the asinine judgments recently handed down by the Court. As I have previously written, the Dobbs decision on abortion (misquoting sources, cherry-picking and fabricating “facts”) and Bruen decision on gun regulation policies (must be rooted in policies in effect in 1791) were not universally well received by people directly effected, but also by people like me who read and analyzed those decisions and found them to be utter nonsense, if not borderline gibberish.
But currently, what’s got many people vexed is the investigative reporting from a variety of publications of the outside personal associations that some of the judges have maintained over years if not decades. Justices Alito (expense vacations) and Thomas (expensive vacations and property sales) provided by parties who either have had or still have direct or indirect on-going interests before the Court.
Six days after he was sworn into the Court in 2017, Neil Gorsuch realized nearly $2 million from the sale property to the chief litigator of a law firm with ongoing cases before the Court. And we still don’t know who cleared hundreds of thousands of dollars of Brett Kavanaugh’s beer tab, I mean credit debt after he was nominated but hadn’t been yet confirmed by the Senate.
Each year, Justices, like all other judges in the federal system, are required to submit financial disclosure forms. These are not onerous complicated forms requiring the assistance of financial advisors or CPAs. It’s pretty simple, the Justice writes down their income from personal and household income, sale of property, investment income, and any other source of income. For some reason Justice Thomas rarely recorded any income his wife earned from being a conservative gadfly and activist. Justice Gorsuch did record the sale of his property but not the buyer. And Justice Alito has been pretty much mum on the topic for decades.
In fact, Thomas and Alito never reported the economic value of gifts of fishing lodge or luxurious yacht vacations. Both cited the practice of accepting gifts from “friends,” giving new meaning to the notion of “friends with benefits.” This year, both Justices asked for and received an extension of time to turn in their financial reports.
This year, a whistleblower complaint was filed claiming that Chief Justice Robert’s’ wife made about $10 million dollars in commissions over an eight year period as a legal “consultant.”
Actually she was a legal recruiter who matched attorneys with top law firms, some with business before the Court. Roberts did report the income as “salary” and not “commissions” as the whistleblower claims. The complaint is now before the Senate Judiciary Committee for review. Don’t hold your breath waiting for a result.
Which raises a serious question, what exactly is the check by the executive and the legislative branches on the Court? Currently, there are explicit Ethics Rules for all members of the Judiciary, save for the nine Justices of the Supreme Court. Why are Justices excluded from the same standards set for judges in the lower courts? Are we to expect that after receiving a lifetime appointment each of the Court’s members would live exemplary, cloistered lives?
As the old saying goes, “trust everybody but cut the cards.” And that’s just what Senator Sheldon Whitehouse is doing with the Supreme Court Ethics, Recusal, and Transparency Act recently approved by the Senate Judiciary Committee and sent to the full Senate for consideration.
According to the Senator, the Act “would require Supreme Court justices to adopt a code of conduct, create a mechanism to investigate alleged violations of the code of conduct and other laws, improve disclosure and transparency when a justice has a connection to a party or amicus before the Court, and require justices to explain their recusal decisions to the public.”
As might be expected not everyone was happy about this, least of all one of the Justices. In a recent interview with the Wall Street Journal (owned by Rupert Murdoch) Sam Alito, when asked about the controversies noted above and specifically Whitehouse’s legislation, made the following statement:
“I know this is a controversial view, but I’m willing to say it,” he said. “No provision in the Constitution gives them the authority to regulate the Supreme Court—period.”
I dissent.
In 1789, the Congress enacted the first Judiciary Act that established the structure of the federal court system, determined that the Supreme Court would consist of five Justices, and created the position of Attorney General. Since that time, this Act has been periodically amended to add additional Justices, and expand or narrow the scope of the high Court’s jurisdiction. In fact, it was the Judiciary Act of 1925 that created the path that has permitted the Court to determine which cases to hear.
Not only cases but issues. The Supreme Court doesn’t normally review cases, it reviews cases only as they pertain to the issue the Court wants to review. As a result, there are really two dockets at the Court, a “merits docket” where the results have precedential value, and the “shadow docket” where cases are decided based on the pleadings but have no precedential value.
[Note: I’ll write about these two dockets in a subsequent piece.]
For the sake of brevity, and to foreshadow a future piece, the Court has sometimes used both dockets to advance political aims. It is in this way that Alito tried to use the Wall Street Journal to politically fend off the imposition of ethics policies.
The problem with Alito’s statement is that he’s wrong. He made what I hope was a knowingly fictitious statement. We’re talking Dobbs level of wrong and fictitious.
Article III, sec. 2 states:
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. (italics mine)
Since there are very few cases under the Constitution’s original jurisdiction that are heard by the Court. The bulk of pleadings impact the Court’s appellate jurisdiction. The vast number of appeals submitted to the Court increase the possible instances of conflicts of interest, or at minimum the appearance of a conflict of interest, which is sometimes worse.
Recently, Alito, Thomas, and Roberts have publicly pushed back against those who criticize the Court’s operations and judicial opinions. One Justice has even called the critics “whiners.” What’s next, “nanny nanny goo goo?”
The Court consists of (hopefully) lower case “p” political actors. As will be discussed in a subsequent post, their actions or inactions can impact the hundreds of millions of people in this country. Like it or not, at least to some degree, they are political. They are not a collection of gods housed on Mount Olympus. They are a collection of humans, with a set of beliefs and experiences that inform how they respond to the legal issues that arise from other humans who inhabit this mortal coil.
And like any humans who are charged with enormous power and responsibility to faithfully apply the law in service to the people of this country, these Justices are fallible. To ensure and restore the credibility of this Court, legislation such as Senator Whitehouse’s must be enacted by the Congress.
A final note about Justice Alito. Alito was nominated by President George W. Bush in 2005. He was confirmed by the Senate in January 2006. This is consistent with Article II, sec. 2:
“… and he [the President] shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.”
In other words, Alito got his job because of Congress.
And so it goes…
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