Supreme Disgrace: Reputations Shattered by Reckless Misconduct

12 min read        

The Supreme Court is supposed to be the epitome of integrity and objective. It's time to pull back the robe on the Supreme Court justices trampling the Court's dignity under their feet. For too long, a renegade few have been able to recklessly disregard judicial ethics and drag the highest court in the land through a crisis of credibility, unchecked. This has to stop, and we have to raise our voices to expose the truth and demand accountability, before it's too late.

Welcome to That's Life, I Swear. This podcast is about life's happenings in this world that conjure up such words as intriguing, frightening, life-changing, inspiring, and more. I'm Rick Barron your host. 

That said, here's the rest of this story

Integrity and a sense of decency once defined the Supreme Court justices of the past. 

A case in point happened in1969, where Justice Abe Fortas resigned over controversy over a $20,000 consulting fee from a securities fraudster's foundation, which he ultimately returned. Though believing himself honorable, Fortas grasped the Supreme Court's delicate standing, recognizing its nine members must avoid even a whiff of bias or impropriety. A judge must be above reproach.

Justice Abe Fortas. Courtesy of: Wall Street Joural

Fortas placed the court's and nation's interests first by stepping aside.

Samuel Alito and Clarence Thomas. Courtesy of: POLITICO

Such humility eludes today's court, increasingly embarrassing itself through the audacious conduct of two senior justices, Samuel Alito and Clarence Thomas. They brazenly disregard obligations of neutrality and independence by failing to disclose lavish gifts, vacations, and payments to relatives from wealthy donors with business before the court. They voice blatantly partisan views or inadequately separate themselves when spouses do so.

Their message is pretty clear: public disapproval matters not. Polls show record-low approval for this court, troubling millions of Americans. Yet Washington seems unwilling to act, allowing the justices' disdain for accountability to persist unchecked.

This indefensible situation cannot persist. The court's refusal to police its own members, allowing a few justices to trample its reputation underfoot, necessitates that Congress take decisive action. Stricter enforcement of judicial ethics and mandated recusals when clear conflicts of interest arise are long overdue.

The latest in an accumulating litany of concerning incidents came to light when it was reported that an inverted American flag flying over Justice Samuel Alito's home in the aftermath of the January 6th insurrection incited by then-President Donald Trump. This unambiguous pro-Trump statement, widely adopted by those falsely claiming the 2020 election was "stolen," reportedly remained aloft for days as the court deliberated whether to hear a case challenging the election results. 

American flag flying upside down...what could be wrong?  Courtesy of: The Daily Beast

In his statement to the press, Alito deflected blame for the flag's display onto his wife, Martha-Ann, citing a neighborhood dispute. With a smug demeanor, he expressed no remorse nor any attempt to remove the ethically compromising symbol. Incredibly, Alito has declined to recuse himself from multiple January 6th-related cases currently before the court, including Trump's claim of absolute immunity from prosecution over his role inciting the Capitol assault.

As if this flag incident wasn’t enough, yet another one occurred at Alito’s vacation home in New Jersey. This time, it was the “Appeal to Heaven” flag that many rioters carried at the Capitol on Jan. 6, 2021. The flag flew at the summer house from July to September of 2023.

Justice Clarence Thomas faces even graver ethical quandaries regarding the January 6th cases. His wife, Ginni Thomas, actively participated in legally attempting to overturn the 2020 election and keep Donald Trump in power. Yet apart from a single, minor exception, Thomas has steadfastly refused to recuse himself from any related cases before the court.

Other justices have recently revealed concerning political biases as well. In 2016, the Times editorial board admonished Justice Ruth Bader Ginsburg for labeling Trump a "faker" - remarks for which she quickly expressed regret. It was a proper response, but the impropriety could not be undone.

Federal recusal law is unambiguous: "Any justice, judge or magistrate judge...shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

For the January 6th cases, one would think that recusal should be a straightforward matter. At a minimum, reasonable doubts about Justice Alito's impartiality are justified given his failure to remove the inverted flag from his property, especially as the court weighed whether to hear an election challenge case amid intense national conflict over that very issue.

Justice Thomas's professed unity with his wife clouds his ability to remain impartial. He is further compromised by the legal mandate for judges to recuse themselves when spouses are "likely to be material witnesses" - an unmistakable description of Ginni Thomas, who testified before the House January 6th committee under threat of subpoena.

In essence, Justices Alito and Thomas appear to be violating federal recusal laws, severely undermining what little remains of the court's legitimacy in the process. The pressing question is whether any authority will address such disregard of ethical obligations.

Alex Aronson, executive director of the judicial reform group Court Accountability, captured the essence of the recusal laws very well, and I quote: "If recusal doesn't happen in a case where a justice openly supports an insurrection scheme that implicates the very election he's judging, then is the recusal statute meaningless?" End quote.

This brazen defiance cannot be allowed to stand. Congress must uphold the integrity of the nation's highest court before it is tarnished by the unrestrained misconduct of a few rogue jurists.

The Ethics in Government Act mandates that the Judicial Conference, led by Chief Justice John Roberts, refer any reasonable belief of willful judicial lawbreaking to the Justice Department. However, the attorney general need not await such a referral. Given Merrick Garland's Justice Department's handling of Trump-related investigations, expectations of action should remain measured.

Nor does the Supreme Court's newly adopted ethics code offer reassurance. If anything, it exacerbates concerns by undercutting existing legal authority and affording justices even broader impunity.

According to Mark L. Wolf, a senior federal judge in Massachusetts and former Gerald Ford Justice Department official, in enacting this code "the Supreme Court has essentially asserted the power, if not the right, to disobey laws passed by Congress and the president." Wolf argues it "undermines the system of checks and balances safeguarding our constitutional democracy, threatens the impartiality of the Supreme Court, and jeopardizes crucial public confidence in the federal judiciary."

The flagrant ethical breaches cannot persist unchecked. Substantive accountability measures, whether from Congress, the Justice Department, or the Judicial Conference itself; are urgently needed to uphold the Supreme Court's integrity and legitimacy before further irreparable reputational harm is inflicted.

While Chief Justice Roberts may lack authority to compel ethical conduct from his colleagues, he holds significant moral and institutional sway. Yet the new ethics code appears no match for the entrenched culture of omertà binding justices for generations. As was reported, though court staff are prohibited from political displays, the Alito flag incident quickly became known internally, only to be suppressed for over three years.

Senate Democrats hold power yet have remained largely silent, resorting to admonishing letters. Judiciary Committee Chairman Richard Durbin decided best not to investigate, calling for Alito's recusal from January 6th cases, but dismissing more forceful actions like hearings as fruitless.

Perhaps congressional Democrats were deterred by Justice Alito's stunning rebuke of congressional authority over the Supreme Court in The Wall Street Journal last year, stating: "No provision in the Constitution gives them the authority to regulate the Supreme Court - period." 

This would surely surprise the nation's founders, who said no such thing and granted Congress regulatory power over the court's size, salaries, jurisdictions, and ethical obligations from its inception.

Accountability is sorely needed. Whether Chief Justice Roberts employs his moral leadership, congressional Democrats muster resolve, or the Judicial Conference upholds its ethics mandate, robust measures safeguarding the Supreme Court's integrity can no longer be deferred.

We are confronted with overtly unacceptable conduct from those entrusted with the utmost judicial authority. At the very least, Congress can cast light on these transgressions to identify and criticize those acting up. This would serve the dual purpose of truthful accounting and public education, revealing to the American people the depths of corruption afflicting certain justices.

So, what compels Congress's unwillingness to do something? Its committees can and must hold hearings, compelling testimony from witnesses before the nation. 

• They can and should subpoena Justice Alito himself, as well as Justice Thomas. If they refuse to appear, subpoena their wife’s. Heck, Alito directly implicated his wife over the flag incident and who cannot claim separation of powers protection. 
• Subpoena Chief Justice Roberts, who declined last year's polite invitation to testify. If he still fails to appear, Congress should recall its power over the court's non-security finances as an incentive for compliance.

This unvarnished truth-telling is urgently required. Unfettered ethical violations at the Supreme Court's highest levels can no longer be tolerated if its credibility and legitimacy are to survive. Congress must exercise its full constitutional authority to compel accountability and restore integrity to the nation's most powerful judicial institution.

For those fixated on lifetime tenure, this phase represents merely a step in a prolonged crusade. While Justices Alito and Thomas approach their twilight years, a fresh body of even more radical, partisan judicial activists ascends through the federal judiciary's ranks. Many were appointed under Trump's inaugural term, with the prospect of further appointments in a potential second term. Unchecked by substantive congressional oversight, these jurists may interpret the absence of consequences as a carte blanche to trample ethical standards with impunity.

However, this issue transcends the court's past transgressions and speaks to its future trajectory. Young Americans casting their first ballots this year were born after Bush v. Gore; some were still in high school when Mitch McConnell obstructed Merrick Garland's Supreme Court nomination by Barack Obama. 

For this generation, the court's current ethical crises may be the norm they've come to expect from its conduct.

The present moment presents a critical juncture to demonstrate to future generations that the nation merits a Supreme Court worthy of public trust - one whose members uphold the highest ethical mandates and sense of duty to the institution they serve. The court's legitimacy hinges on the people's faith, just as the people rely on its impartiality and integrity.

Forceful congressional action to address the justices' unchecked ethical breaches is imperative to reset the standards and reclaim the Supreme Court's legitimacy for generations to come. The alternative is acquiescing to a "new normal" of lawless disregard for accountability at the highest echelons of the judiciary.

What can we learn from this story?  What's the takeaway?

Our Supreme Court justices are expected to maintain not just the reality of no conflicts of interest that might influence their rulings, but also the appearance of no such conflicts. 

To the nation, the two flag incidents made it appear that Justice Alito believes Donald Trump’s lies about a stolen election, and thus would rule in favor of Mr. Trump. Blaming his wife makes a sham of his own responsibility not to appear political. 

Clarence Thomas bathing in gifts.  Courtesy of: SLATE

As for Justice Thomas, accepting gifts from billionaires, isn’t what we would call upstanding on his part. Thomas took at least 38 vacations, 26 private jet flights, eight flights by helicopter, a dozen VIP passes to sporting events and stays at luxury resorts. Nope, nothing wrong here!

Both Congress and the White are not held in high esteem with today’s public. If we allow the Supreme Court to follow the same path, well, take a wild guess as where the country goes then.

Well, there you go, my friends; that's life, I swear

For further information regarding the material covered in this episode, I invite you to visit my website, which you can find on Apple Podcasts, for show notes calling out key pieces of content mentioned and the episode transcript.

As always, I thank you for the privilege of you listening and your interest. 

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