Supremely Unaccountable

Will Democrats turn the Supreme Court to their political advantage?

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No one has ever cast their ballot  for Samuel Alito. Ditto Clarence Thomas. Or any Supreme Court justice. They are nominated by the president and confirmed by the Senate, then guaranteed a job for life. And they are accountable to no one.

It’s a sweet deal as long as you can stay on the straight and narrow. Today that unwritten but implied requirement seems almost quaint.

We have taken for granted that justices should be impartial, should have sound judgment and their conduct should be beyond reproach. Unfortunately, “shoulds” leave a lot of room for interpretation.

And it was always understood that in order for the American people to have faith in the high court, the justices must display unimpeachable integrity. For the past 233 years, this has seldom been an issue. Now it is a major one. 

As you may have seen, Justice Samuel Alito has a flag problem. Well, two flags, actually. Flags flown at his homes in Virginia and New Jersey are symbols used by the insurrectionists who stormed the Capitol on January 6.  

Justice Clarence Thomas has a billionaire problem. ProPublica has reported how Harlan Crow, a heavily monied Texan, paid for luxury vacations for Thomas and his wife and funded their nephew’s private school tuition, among other gifts. In addition, Mrs. Thomas was involved in efforts to overturn the 2020 election.  

Neither of these justices should be involved in cases dealing with the January 6 insurrection or Trump’s claim of absolute immunity. But they are, and there is no mechanism to stop them. Democrats’ demands that Alito and Thomas recuse themselves have been ignored.

The approval rating of the Supreme Court has never been lower. However, an approval rating for a group with lifetime tenure and no accountability is fairly meaningless. Historically, the Supreme Court has not had, nor needed, a code of ethics, going back to the first court in 1790. But after the revelations about Crow’s gifts to Thomas, Congress made it clear that something had to be done.  

That did not sit well with some Supreme Court justices, including a vociferous Justice Alito. In an interview with The Wall Street Journal’s editorial board last summer, he said, “Congress did not create the Supreme Court. No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”

Justice Elena Kagan vehemently disagreed with her colleague’s assertions, arguing that Congress can and does regulate the court. “Congress funds the Supreme Court. Congress historically has made changes to the court’s structure and composition. Congress has made changes to the court’s appellate jurisdiction. We’re not imperial.”

The high court, it seems, is not immune from the rancor and hostility overwhelming the rest of the country. 

Finally, late last year, Chief Justice John Roberts announced the court had agreed to a voluntary code of conduct. But because it is so full of loopholes and lacks an enforcement mechanism, critics say it’s toothless.

The court that Donald Trump packed with three far-right jurists is steering the country and setting the political agenda much more than Congress, despite the resounding unpopularity of many of those decisions, such as the one that overturned Roe v. Wade. 

And more are coming. In the weeks ahead, decisions on controversial cases from bump stock bans to medication abortion to Donald Trump’s claim of immunity from prosecution are expected. 

Three of the current justices are in their 70s. There’s a good chance whoever wins the presidency in November will fill more than one court vacancy. A strategy for Democrats would be to hammer home the long-term effects of this election on all three branches of government. 

This, among many other reasons, is why defeating Donald Trump matters well beyond the four years he would occupy the Oval Office. 

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Dan