Jonathan P. Baird

Not even a month ago, I wrote a column that pointed out the ongoing corruption issues with Supreme Court Justice Clarence Thomas. He had failed to report lavish vacations and expensive gifts he had received from his billionaire “friend” Harlan Crow and he also failed to recuse from January 6-related cases where his wife was closely tied to the insurrectionists.

Almost immediately after writing that, the corruption floodgates opened. A new wave of Supreme Court ethical improprieties surfaced and the stories about the justices keep coming. First and most prominently are the Justice Thomas stories. Harlan Crow bought Thomas’s elderly mother’s home, paid for major repairs and improvements, took care of her real estate property taxes, and allowed her to live there rent-free. Thomas did not report it on federal disclosure forms.

Then there was the story about megadonor Crow paying many thousands to cover the cost of private school tuition for a Thomas family member who Justice Thomas raised “as a son”. Thomas also did not disclose that.

We also learned that in 2012, Federalist Society honcho Leonard Leo instructed Kellyanne Conway to give Ginni Thomas, the wife of Justice Thomas, tens of thousands of dollars for unspecified consulting work. Leo said, “No mention of Ginni, of course”. None of the dark money was disclosed.

For many years, Justice Thomas never disclosed the money stream his wife received from conservative donors. That non-disclosure hides possible conflicts of interest. We are unable to determine if Thomas has been ruling on cases where his wife is supporting partisans to litigation before the Court. And this is no accident as Thomas does not believe in transparency and he chose not to disclose.

Just three days before President Bush nominated Clarence Thomas to fill his seat, Thurgood Marshall said, “My dad told me way back…there’s no difference between a black snake and a white snake, they’ll both bite”. Anita Hill tried to tell us who he was but no one listened.

Thomas was not the only non-disclosure offender. Nine days after he was confirmed by the Senate, Justice Neil Gorsuch didn’t report the identity of the purchaser of a house he co-owned on the Colorado River in the mountains northwest of Denver. It turned out the buyer was chief executive of one of the nation’s biggest law firms who had an active presence in cases before the Court. Politico reported at least 22 cases including cases in which the purchaser filed amicus briefs or represented parties.

Chief Justice John Roberts’ wife made $10.3 million in commissions from elite law firms. She paired lawyers and corporations as a legal recruiter. Many of the law firms regularly argue before the Court. There is a whistle blower complaint about the justice’s wife’s activities that was filed by a disgruntled co-worker. This may not be on the level of Thomas-type violations but it has an appearance of impropriety.

We all watched the lying testimony of the conservative nominees to the Court about how they respected precedent and Roe v Wade. Now that they have their supermajority they are dispensing with any precedent they dislike.

Senator Sheldon Whitehouse (D-RI) has explained that the Supreme Court’s ethical issues are long-standing and implicated now-deceased Justice Antonin Scalia. Just like Thomas, Scalia failed to disclose over 70 hunting vacations where he ran a scam using the personal hospitality exemption to reporting.

Scalia got intermediaries to ask the owner of expensive resorts to extend a “personal” invitation to him. Many of the owners were not personally known to Scalia but he then used the “personal” invitation as a way around disclosure claiming personal hospitality.

When Chief Justice Roberts was asked to appear before the Senate Judiciary Committee to testify about the avalanche of Supreme Court ethical violations, he refused the request to participate, citing separation of powers and judicial independence. Roberts’ response could fairly be described as a blow-off.

In a very different context over 60 years ago, Senator J. William Fulbright wrote about the arrogance of power. Chief Justice Roberts’ lack of accountability reflects the same arrogance of power.

At present, there is no mechanism for even filing a complaint about unethical behavior by a Supreme Court justice. Unlike in other federal courts, only Supreme Court justices refuse to allow their conduct to be investigated or reviewed. The benefit of an ethics code should be obvious. All allegations could be measured and evaluated in a proper process. Once a conclusion was reached, justices would know where they stand. Self-policing has turned into a bad joke.

In his testimony before the Senate Judiciary Committee, Sen. Whitehouse stated the need for better enforcement, better recusal rules, and better disclosure rules. He could not be more right.

Unfortunately, the problems with the Supreme Court go far beyond needing an ethics code although that would be of great value. The Court has become a plaything of right wing billionaires. On social media I saw it called “Roberts Barons”. As the comedian Roy Woods remarked at the White House Correspondents dinner, you have billionaires buying a justice. It is what Sen. Whitehouse has called a captured court.

The right wing billionaires are about implementing an unpopular agenda that they cannot implement through the democratic process. They are using the Supreme Court to create a super-legislature to promote an entirely selfish and self-serving vision. Rather than pursuing any vision of multi-racial democracy, their Court systematically dismantles voting right protections and serves the interests of the powerful at the expense of the most vulnerable.

It is extremely difficult to follow the dark money of the billionaires because Republican legislators and a complicit Supreme Court have blocked laws and regulations that would reveal donors.

Of course, the rulings of the current incarnation of the Supreme Court are not inconsistent with the longer-term history of the Court. For most of its history, the Court blessed white supremacy and it crushed working people and the poor. The Court has largely been a regressive institution. It is entirely undeserving of the reverence and high regard in which it has been held.

The response of Democrats to the Court’s capture by billionaires has been so weak. The conservative plan has been in place for over 50 years. With the conservative supermajority, we are poised to see a series of even more disastrous decisions.

If Democrats are serious about opposing the billionaire takeover of the Court, they would seriously pursue expanding the number of justices on the Supreme Court. Anything short of that will not stop the conservative juggernaut. The Constitution is not an obstacle to Court expansion. It is the perogative of Congress to expand the number of justices and it has been done before. For the Democrats, it is more a question of having the political will to take it on.

If anything was a wake-up call, the overturning of Roe v Wade should have been. Liberals and progressives need their own 50 year plan. They failed to take courts seriously and we are now reaping the result. Ethics reform is absolutely needed but it alone is not enough.