Although coverups of Clarence Thomas’ questionable behavior during his 1991 confirmation suggested an illegitimate Supreme Court, the doubts exploded when the high court appointed George W. Bush to the White House in 2000 and refused to permit the swing state of Florida to complete its ballot count. Justice Sandra Day O’Connor was the vote that gave Bush Florida, and the documents about her role in his appointment are coming home to roost. She openly supported Bush as president and wanted him to nominate her replacement—and she was in a position to effect this.
Newly released documents, some of them from former Justice John Paul Stevens’ papers, include a four-page memo she sent her colleagues on December 10, 2000, before they heard arguments in Bush v. Gore, laying the groundwork for the ruling that stopped Florida’s unanimous court-order recount. Her attack was against including manual ballot recounts in Miami-Dade, Broward, and Palm Beach counties; the three counties were given only five days to certify their results.
Future seven-count felon Roger Stone and election-denier Matt Schlapp, who is being sued by a male GOP campaign worker for sexual assault, coordinated hundreds of paid operatives to Florida to harass and intimidate Miami-Dade officials to block their court-ordered work with the “Brooks Brothers Riot.” On November 26, 2000, Florida’s secretary of state Katherine Harris, co-chair of Bush’s state campaign, declared Bush the state’s winner by 537 votes while counties were still tallying ballots. Bush’s legal team in the Supreme Court case putting him into the White House included current Justices John Roberts, Brett Kavanaugh, and Amy Coney Barrett. More details of the travesty.
In his prescient dissent, Stevens wrote:
“Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judges as an impartial guardian of the rule of law.”
Four out of the five justices who sided with Bush were accused of conflicts of interest: septuagenarians Chief Justice William Rehnquist and O’Connor said they wanted to retire during a Republican presidency; Thomas’ wife Ginni was headhunting personnel for a Bush administration; and two sons of then Justice Antonin Scalia worked for law firms representing Bush. None of them recused themselves. Bush later nominated Eugene Scalia for U.S. labor solicitor, and on election night, O’Connor said “this is terrible” to a report that Al Gore was in the lead.
In 2013, seven years after O’Connor retired, she expressed regrets for the case which she commented, “gave the court a less-than-perfect reputation”:
“It took the case and decided it at a time when it was still a big election issue. Maybe the court should have said, ‘We’re not going to take it, goodbye.'”
Thanks to O’Connor’s bad judgment, and the interference of the Supreme Court in a presidential election, Bush led the country into trillions of dollars of debt with two wars, tax cuts, and a recession that conservatives want to solve two decades later.
Justice Samuel Alito is hostile about a need for ethics rules for justices and rejects the perception that the justices’ behavior could lose respect for the high court. Instead, he blames the person who leaked his draft of the Dobbs decision overturning abortion rights in Roe v. Wade. Recently, he has claimed that he had “a pretty good idea of who is responsible”—and it isn’t a conservative. Yet he won’t give any evidence or indication of the leaker. Roberts wouldn’t allow any investigation other than his own, and justices themselves weren’t questioned. In his report, Roberts, who won’t permit any ethics’ control on the justices, accused the leak of being “a grave assault on the judicial process.”
Alito himself could have leaked the draft. Rev. Rob Schenck, one-time leader of a religious antiabortion group, said that Alito told a conservative Ohio couple sent by the organization in advance about the outcome of Burwell v. Hobby Lobby (2014) which reduced rights to contraception. The couple had hosted Allito at lavish dinners, and evidence backs up the claim about Alito confiding in them. Schenck wrote Roberts about Alito, but the chief justice didn’t respond.
The New York Times, Politico, and Rolling Stone covered the ways that conservatives involved themselves with conservative justices through six-figure donations to the Supreme Court Historical Society and access to vacation spots such as a home in Jackson (WY). The court’s legal counsel, Ethan Torrey, wrote Schenck:
“There is nothing to suggest that Justice Alito’s actions violated ethics standards. Relevant rules balance preventing gifts that might undermine public confidence in the judiciary and allowing judges to maintain normal personal friendships.”
Torrey also repeated the Judicial Conference rule that does not permit gifts from people “seeking official action from or doing business with the judge’s court or whose interests may be substantially affected by the performance or non-performance of the judge’s official duties.” He knew, however, that the couple were interested in “all cases related to biblical issues.” In a newsletter, they explained that they backed Schenck’s Operation Save our Nation “because we firmly believe that if we can reach our appointed and elected officials in Washington, DC with the Word of God, it is bound to have a major impact on the attitudes and actions of those in a position to shape and interpret our laws.”
Conservative justices are also involved in a newly announced Supreme Court scandal, this one involving George Mason Scalia Law School giving money to Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas for what a critic has called “all-expenses-paid vacation, with a little teaching thrown in” for the justices. The school benefits from successful fundraising and status from placements of students in prestigious positions. After Justice Antonin Scalia’s death in 2016, Leonard Leo, a conservative behind the DDT’s far-right judicial appointments, gave $30 million to George Mason in exchange for changing the name of the law school and paying off the conservative justices.
Gorsuch has been paid to travel to Iceland and Italy; Kavanaugh lived free in a cottage near the River Thames while teaching at a university outside London. Emails show that the justices ignored the ban on using their staff to work on paid outside work, and the school’s “co-teachers” seemed to do much of the administrative load, and the professors also submitted amicus briefs to the high court to influence rulings. Thomas echoed the arguments of a professor with whom he was teaching, in a 2022 dissenting opinion. A Scalia law school professor also helped Gorsuch find a house in DC after his confirmation and later went to work for him.
The conservative justices are almost completely predictable in their rulings. Their claim of following the original wording in the constitution has worn so thin that it is shredding as they follow their ideology. In support of voting oppression, the court voted 5-4 to suspend the Voting Rights Act’s ban on racial gerrymandering in early 2022. GOP lawmakers in states like Alabama, Florida, Georgia, Louisiana, South Carolina, and Texas pack minorities into a few districts to keep Republicans elected to the state and federal legislatures. The other minorities are scattered throughout majority-white districts. For example, Alabama, one-third Black, has one predominantly Black congressional district out of seven. Even two DDT-appointed judges in a three-judge panel overturned the state decision, but the high court reinstated it, 5-4, allowing other southern racially polarized states to follow the same pattern.
In its goal to take control from government agencies, the conservative Supreme Court will likely strip power from them in reconsidering whether judges must defer to federal agencies while interpreting ambiguous federal laws. Chevron U.S.A. v. National Resources Defense Council (1984) has been a guideline for lower courts in thousands of cases, extensively used in arguing environmental, financial and consumer protection cases. In Loper Bright Enterprises v. Raimondo, the high court will hear arguments about whether the government can force herring fishers off the New England coast to fund a program providing federal monitors for their operations. Lower courts ruled for the government in the program overseen by National Marine Fisheries Service. Both Gorsuch and Thomas have given opinions to overturn Chevron, and Justice Kentanji Brown Jackson recused herself because she was on the circuit court hearing the case.
A risk for the current court is its decision regarding President Joe Biden’s student debt cancellation plan, which conservatives lean toward negating. A new report states that that the GOP officials’ center argument is “categorically false.” Missouri’s officials claimed they had standing to bring the case because the plan would “cut MOHELA’s operating revenue by 40%.” (MOHELA is the state-created higher education loan authority.) According to research from MOHELA’s “internal impact analysis, MOHELA would see its loan revenue substantially increase with Biden’s proposal and service over twice as many accounts.
In an Atlantic article, Adam Serwer describes how the current court uses the shadow docket—no arguments or opinions—to establish the current culture of the U.S.
According to journalist Emmarie Huetteman:
“The ethical conduct of the Supreme Court has been under growing scrutiny. Questions have been raised over Justice Clarence Thomas’s appearances before Republican-backed groups and his acceptance of favors from a contributor in Texas, Harlan Crow, as well as over his wife, Virginia Thomas, and her job as a conservative advocate.”
That was written in 2011. The Supreme Court ethics problem has only worsened in the past dozen years.
Nel's New Day 