So, What Can We Do About the Naked Corruption of the Supreme Court?

Replacing Thomas, Alito, and Kavanaugh would take the balance of the Court back to where it was in 1973, before Nixon decided to drive Fortas out with bogus charges. There may be a way...

Image by Edward Lich from Pixabay

When the Mifepristone case came before the Supreme Court, Clarence Thomas and Sam Alito bizarrely brought up their desire to see the Comstock Act again enforced.

Even arguably worse, they’re in part responsible for giving Trump months of delay in the case Jack Smith has brought against him for trying to overthrow our form of government. As Liz Cheney, apparently quite pissed off at the Court herself, said this week:

“[Trump] now is pushing this idea that a president should have complete immunity against any criminal prosecution for anything he does in office and he’s pushed this appeal to the Supreme Court; I think it’s very important that the Supreme Court recognizes what he’s doing is a delaying tactic.

“It cannot be the case that a president of the United States can attempt to overturn an election and seize power and that our justice system is incapable of holding a trial and holding him to account before the next election.”

Actually, with a Supreme Court filled with corrupt stooges for the morbidly rich, it can be the case. It is, in fact, the case: they’ve given him as much delay as they legally can. So, what can we do about the naked corruption on this Court?

If Donald Trump wins the White House this fall, in all probability both Clarence Thomas and Sam Alito will retire to let the Federalist Society and Leonard Leo’s people pick two replacements in their 40s.

But if Biden wins, Democrats should be ready to help them both out, too.

But how? By using political theater!

Richard Nixon pioneered this strategy back in the early 1970s, when the most liberal member of the Supreme Court, Abe Fortas, was a thorn in the side of the Republicans and the billionaires and big corporations who supported them.

His strategy was straightforward: launch a formal investigation into allegations of corruption against Fortas that the GOP had manufactured — yes, they were totally bogus, as time and historians have proven — that put enough pressure on him that he resigned.

In the case of Thomas and Alito, there’s no need to invent anything; there’s abundant evidence of corruption already on the public record. And there are a ton of questions about Kavanaugh. Nonetheless, the history is enlightening and can help provide a roadmap for change.

It started in the last year of LBJ’s presidency.

In June of 1968, Supreme Court Chief Justice Earl Warren — a liberal who’d been appointed by Dwight Eisenhower — decided to resign from the Court so that President Lyndon Johnson would have a full six months to replace him with another liberal.

LBJ proposed elevating the only Jewish member of the US Supreme Court, Abe Fortas, to become the new Chief Justice (and Homer Thornberry to fill Warren’s empty seat), but racist and antisemitic “conservatives” like Thurmond — and presidential candidate Richard Nixon — saw the upcoming hearings as a grand opportunity. 

They postponed Thornberry’s nomination, front-loading the hearings about putting Fortas in charge of the Court, and then ran an inquisition into Fortas over a $15,000 speaking fee he’d taken to address a college group.  (Clarence Thomas has also taken $15,000 speaking fees, and more, for the record.)

With that “scandalous” payment — and his vote on the Court to legalize pornography — as the excuses, Republicans and racist Southern “conservative” Dixiecrats like Thurmond arrayed a Senate filibuster to block the liberal and Jewish Fortas’ elevation to Chief Justice. 

It dragged out for months; on October 2, 1968 it became obvious the filibuster couldn’t be broken and Fortas withdrew his name from consideration for Chief Justice, although he planned to remain on the Court as an Associate Justice like his peers.

By then it was too late for LBJ to elevate another liberal to Chief Justice (Warren stayed on the Court for another half-year to provide continuity) and also too late for LBJ’s nominee Thornberry to even be considered to replace Warren’s empty seat before the presidential election four weeks later.

But that was just the beginning.  

Once Nixon came into office on January 20, 1969 he put ending the Court’s “liberal” bent at the top of his agenda.  That meant not only replacing Warren (who stayed on until June 23, 1969), but, to tip the Court conservative, getting rid of it’s most liberal member, Abe Fortas.

Attorney General John Mitchell ordered the Justice Department to begin an investigation into Fortas’ wife, Carolyn Agger, who was a lawyer with the DC firm that had previously employed Fortas. 

Rightwing media had claimed — without evidence — that “documents that might be found in a safe in her office” might prove she was involved in a tax-evasion scheme.

There was never any evidence whatsoever, either of Fortas or his wife being corrupt. It was and is not illegal to take a speaking fee: members of the Court do so routinely today. And there was nothing incriminating in her safe.

But Richard Nixon, John Mitchell, and Abe Fortas knew the old legal saw: “A grand jury can indict a ham sandwich.”

Mitchell had also dredged up another payment that Fortas had earned, this one $20,000 a year for serving on the board of a charitable foundation (not uncommon for high-end DC lawyers then or now).

This was also totally legal (and nothing compared to the millions of dollars Ginni Thomas has taken from rightwing groups and Harlan Crow since her husband was put on the Court) but Fortas gave back the money anyway.  

Not only did that not help: his returning the money was, Nixon charged, proof that it was corrupt money in the first place!

Mitchell then announced he was going to have a Justice Department lawyer named William Rehnquist convene a grand jury to look into the “crimes” that right-wingers were claiming Fortas and his wife had committed.

As Nixon’s White House Counsel John Dean, who was there and knew the players, wrote in his book on the era (The Rehnquist Choice):

“Did the Justice Department have the goods on Fortas? Not even close. Mitchell’s talk was pure bluff. … Lyndon Johnson’s Justice Department had investigated this question [back when Fortas was nominated for Chief Justice in 1968] and found nothing improper…. Reopening of the matter by Richard Nixon’s Justice Department was purely a means to torture Fortas.”

But faced with the possibility of his wife being dragged through the mud and both of them spending years and a fortune defending themselves, Fortas threw in the towel.  He resigned from the Supreme Court five months into Nixon’s presidency on May 14, 1969. 

With their mission accomplished, Mitchell immediately dropped the threat of the grand jury. As John Dean noted:

“The Fortas resignation meant that Richard Nixon now had two seats to fill on the Court: Earl Warren’s center seat and the seat of Associate Justice Abe Fortas, who was leaving the Court at fifty-nine years of age. It also meant that two of the Court’s most liberal justices were gone.

“Nixon’s aggressive posture toward the high court was paying off in a big way, with the help of John Mitchell and his hard-nosed team at the Justice Department, Rehnquist among them.”

Thus, Nixon was ultimately able to replace three liberal justices on the Court over the following two years, turning it from liberal to conservative (where it remains to this day) for the first time since 1937. They were Harry A. Blackmun (1970), Lewis F. Powell, Jr. (1971), and William Rehnquist (1971).

Which brings us to today.

Aside from Clarence Thomas’ corrupt relationship with Crow, his wife has also benefited from a half-million dollars from Crow for her political activities as well as her apparently active participation in a seditious conspiracy to overthrow the government of the United States.

This is the perfect setup for good old fashioned political theater, using the lesson Nixon left us. But, this time, doing it with integrity.

Instead of trying to impeaching Thomas — an almost impossible lift, given the composition of today’s Senate — the Biden administration and Democrats in the House and Senate would be better served investigating both the bribes he’s accepted as well as Ginni’s corruption and attempted sedition. 

Sam Alito is compromised by billionaires and wealthy foundations in many ways similar to Thomas, albeit not as egregious.

And Brett Kavanaugh has so many skeletons in his closet — that could be forced into the open with a grand jury or congressional investigation — that, like Fortas, he may be unwilling to suffer the outcome of a genuine congressional or grand jury investigation.

(There’s also the $10 million Chief Justice Roberts’ wife has taken from law firms with business before the Court, although I think it unlikely he’ll be as easily taken down.)

Replacing Thomas, Alito, and Kavanaugh would take the balance of the Court back to where it was in 1970, before Nixon decided to drive Fortas out with bogus charges.

If they’re lucky — or strategic — we may be able to get an Abe Fortas outcome and clean up the reputation of the Court in one fell stroke.