Congress Should Be Regulating the Corrupt Supreme Court: Where Are They?

Public outrage is building: the Court’s approval rating is now around 40% - Congress needs to act, before an entire branch of government sinks into an irredeemable Trump-fueled muck of corruption

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So now, as expected after decades of taking big bucks for her rightwing work on behalf of America’s oligarchs, we learn that the wife of Supreme Court Associate Justice Clarence Thomas, Ginny Thomas, was in Trump’s January 6th “rally” up to her eyeballs.

Let’s just say it right out loud: the US Supreme Court is corrupt. And Americans know it.

And Senators Murphy, Blumenthal, Booker, Coons, Durbin, Gillibrand, Hirono, Klobuchar, Markey, Sanders, Whitehouse, Warren, Leahy, Menendez, Casey, Duckworth, and Van Hollen tried to do something about — an effort blocked by Republicans.

No other federal court in the nation would allow a defendant in a case before them to fly a judge on a private Gulfstream luxury jet to a luxury hunting retreat in Louisiana and then, a week later, watch as that judge rules in that defendant’s favor.  

But Supreme Court Justice Antonin Scalia did exactly that when Dick Cheney was sued for allegedly lying about his secret “energy group” that was planning the seizure and sale of Iraq’s oil fields as he and Bush lied us into the war that opened those oil fields up to exploitation.

No other federal court would allow a judge to give a speech before a group that was funding a case before them and then rule in favor of that group’s openly stated goal, but that’s exactly what Neal Gorsuch did when he addressed the Fund for American Studies, itself funded by the Bradley Foundation that was helping fund the Janus v AFSCME case that gutted union protections for government workers.

No other federal court would allow a judge to swear revenge against a particular nonprofit corporation (in this case the Democratic Party), saying in his confirmation hearings that, “What goes around comes around,” and then rule in cases directly affecting that organization (like voting rights) but Brett “Beerbong” Kavanaugh did just that.

No other federal court would allow a judge to rule on a case where he owned a half-million dollars worth of stock in the company presenting amicus arguments before the court — it’s illegal in many states — but John Roberts did just that in the ABC v Aereo case.  As did Roberts, Bryer and Alito in 25 of 37 other cases where they owned stock, according to the good-government group Fix The Court.

No other federal court would allow a judge’s wife to openly interact with and advocate for the interests of dozens of litigants before the court over decades, and take nearly a million dollars from a group regularly helping bring cases before his court but Clarence Thomas and his wife have done both, as recently revealed in a shocking New York Times profile.

And now the Court is on the verge of gutting the EPA — the agency Justice Gorsuch’s mother infamously ran into the ground before resigning in disgrace during the Reagan administration — using Gorsuch’s own BS “textualist” rationale to go after the agency today.

In addition, these Republican appointees are openly shooting down Democratic efforts to fight gerrymandered maps while supporting GOP efforts to impose them on states.

Is there no way, to paraphrase Shakespeare, to rid ourselves of this Court’s corrupt behavior? Turns out, Congress has that power — although they haven’t used it since Ulysses Grant was president and reorganized the Court.

Article III of the Constitution establishes the federal court system, and gives to Congress itself the power to create the lower federal courts.  It also says that Supreme Court judges may only serve on the court if they behave themselves:

“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour….”

It also requires Congress to regulate the Supreme Court.  Article III, Section 2 says:

“[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

The issue of the Supreme Court needing regulation from the “first among equals” legislative branch (Congress), as specified by the Founders and Framers of the Constitution, has been with us for 101 years. 

Most people remember William Howard Taft as the one-term progressive Republican president who followed Teddy Roosevelt into the White House in 1909 and was beaten for re-election by Woodrow Wilson in 1912. 

But after his retirement from the presidency, Taft became the first former president to serve as Chief Justice of the US Supreme Court in 1921.  He was our 27th president and 10th Chief Justice.

In 1921, it came to the attention of the nation and to Chief Justice Taft that US District Judge Kenesaw Landis was taking five times his annual salary as a judge from what was then called “Organized Baseball” — five years after ruling in their favor.

The scandal provoked Congress to pass, in 1922, a law creating a body that would provide advice and oversight to the federal judiciary.  It came to be known as the Judicial Conference of the United States.

The scandal also prompted Chief Justice Taft to accept the unpaid chairmanship of The American Bar Association’s (ABA) newly formed commission to write ethics rules for federal judges. 

Taft’s commission wrote, in 1923, the first Canons of Judicial Ethics, which included 34 categories of judicial conflicts and misbehavior that would either disqualify a judge or require their recusal from cases before them.  They included conflicts of interest, personal financial investments, and even behavior in the courtroom itself. 

Taft, in delivering the Canons, made it clear they should apply to all federal courts, including his own Supreme Court.  Within a decade, every state in the union had adopted the Canons for their own courts.

The Canons, however, had no enforcement mechanism, particularly when it came to the Supreme Court.  After all, who would judge the highest court in the land?  That opened the door for literally a century of the Supreme Court ignoring Taft’s work.

The issue came to the fore again in 1969 when Republicans went nuts when it was revealed that Justice Abe Fortas — a very liberal (Republicans called him a communist) LBJ appointee — had taken $15,000 for a summer teaching post, was receiving time-delayed payments from a law former client, and, worse of all, was secretly advising President Johnson. 

Under massive incoming fire from Republicans and their friendly media, Fortas resigned from the Supreme Court on May 14, 1969. Over the next three years, the ABA put together a new commission to update Taft’s original Canon on judicial ethics.

That commission released their new Code of Judicial Conduct in 1972, and it was adopted by the Judicial Conference of the United States, in 1973.  The Supreme Court, however, chose to ignore it, arguing that they were above such considerations. 

By that time the Supreme Court had made itself, as I lay out in detail in The Hidden History of the Supreme Court and the Betrayal of America, the most powerful of the three branches of government, asserting the power to second-guess both Congress and the President.

Ironically, in his 2011 annual report about the state of the judiciary, Chief Justice John Roberts made lengthy and effusive reference to former Chief Justice Taft and his work with the ABA’s commission on judicial ethics.  His report, however, conveniently omitted the fact that Taft had loudly and publicly asserted it should apply to the Supreme Court. 

Instead, Roberts noted rhetorically, “Some observers have recently questioned whether the Judicial Conference’s Code of Conduct for United States Judges should apply to the Supreme Court.”

I’ll spare you extended quotes from Roberts’ report, which you can read here, but the bottom line is that in his opinion the Court can tell the 1923 ethics recommendations, and the subsequent ones from 1973, to go screw themselves.  The Supreme Court, in his mind, is answerable to nobody but itself.

As Sam Alito said, “I’m not aware of problems on the Supreme Court itself…we would not sit back. We would take action that’s appropriate.”  

Back when Roberts was a young lawyer working for Reagan and trying to come up with a way to overturn Brown v Board and Roe v Wade, he was fond of quoting Article III, Section 2 of the Constitution.

This gave Congress the power, Roberts wrote, to simply overturn both Brown and Roe by passing a law creating an “exception” that the Supreme Court couldn’t rule on issues of race or abortion (his lengthy writings for Reagan are in my book on the Court).

But now that he, himself, is in charge of the Court there’s nary a peep from Roberts — in his 2011 Report or anywhere else — about Congress’ power to regulate the Court. 

In recent years multiple laws have been proposed to pick up the slack Roberts left to his fellow justices.  Louise Slaughter proposed legislation in the house in 2015 that would require the Court itself to come up with its own code of ethics. 

It went nowhere, and, besides, it would violate the basic premise of law dating back to Publius Syrus in 50 BC, cited by John Locke in the 17th century, and finally quoted by Madison in Federalist 10 that “no man shall be the judge in his own case.”

President Biden’s commission on the Courts recently recommended that the Supreme Court adopt an “advisory” code of behavior, but Roberts didn’t even bother to comment. 

Most recently, Senator Chris Murphy introduced the Supreme Court Ethics Act that would seek to regulate the Court’s out-of-control politicking and conflicts-of-interest. Predictably, it was blocked by Republicans in the Senate.

Public outrage is building: the Court’s approval rating is now around 40 percent, an historic low.  Congress needs to act, requiring them to adopt and conform to the federal code of judicial ethics at the very least, and expand the Court at best, before an entire branch of government sinks into an irredeemable partisan muck of corruption.