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April's SCOTUS scandal-fest showed us just how out-of-touch the conservative justices are
The justices are not going to fix their ethics problems. So, and at the risk of repeating myself, we really need to stop treating them like they're special.
When it comes to U.S. Supreme Court scandals, three months is a long time.
Today, I looked back at my Feb. 11 MSNBC column, “The Supreme Court thinks its special. It’s not,” and I had to dig back in to the column before I realized what scandal had prompted the column.
It was, really, about an accumulation of concerns — recusal questions, outside infiltration influence campaigns, the decisions themselves, the way the court handled the leak investigation, and the court’s continued aversion to transparency.
But I find that what I wrote back in February is worth re-visiting as April comes to a close in light of what we’ve learned this past month:
The … scrutiny is of the court’s own making — through several years of questionable, and often partisan, actions. Many decisions from the court over that time, in its cases and otherwise, strongly reinforce the idea that Americans have a responsibility to treat — and, for journalists, to cover — the Supreme Court and justices no differently and no less skeptically than we would treat any other government body.
That was nearly two months before Pro Publica would publish its first story on April 6 about Justice Clarence Thomas and Harlan Crow.
It was a groundbreaking report that is the sort of work I was describing in my column:
Reporters should cover [the Supreme Court] like any other part of government — skeptically and with a focus on what’s happening in the background and the reasons for decisions, not just by providing information about the words that the justices hand down to establish the national legal rules on any number of issues.
That report also, it seems, has opened the floodgates.
Then, there was the property deal in which Justice Neil Gorsuch was involved, reported by Politico on April 25.
On April 28, more information, from Insider, about just how much Chief Justice John Roberts’s wife, Jane Roberts, has made as a legal recruiter (a story the basic details of which had been reported in February).
And then, on Sunday, The New York Times published an extensive report on the ties between several justices — predominantly, conservative Justices Thomas, Gorsuch, and Brett Kavanaugh — and the Antonin Scalia Law School at George Mason University.
Now, sure, not all of these stories reach the same level of scandal. But that’s not an answer. The Jane Roberts and Antonin Scalia Law School stories, for example, do raise ethical questions (primarily, about recusal and/or disclosure rules), but a significant aspect of the scandalous nature of those stories is how they reflect a reality that elite culture has often given substantial benefits, obtained by way of connections, to those already within the “in” group, whatever that group might be. We should care about that, too. Reporting should be delving into that, too.
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All of the stories, more broadly though, center the question: How did we get here?
In the past month, these stories have done much more than supported my column’s claims and aims — they have made clear that changing our mindset about the court is absolutely essential.
Responding to calls for a mandatory code of ethics for the justices, I wrote:
No, the answer needs to be bigger in scale, because the problem is bigger: The Supreme Court, as an institution, thinks it is different. It presents itself as a body above it all — a neutral arbiter that should be seen and treated differently by the public than other government bodies. But as the past few years have made clear, that’s not true.
If there were any doubt about how the justices feel about themselves — and how wrong they are — we just need to look at their responses to the past month’s news.
Chief Justice John Roberts, most notably, has refused to even attend a Senate Judiciary Committee hearing to discuss the court’s ethics issues.
Thomas, while having issued a statement in response to the first Pro Publica story, has held back since.
Gorsuch didn’t respond to Politico at all.
In fact, the one statement the justices, all nine justices, have put out about their ethical obligations — appended to Roberts’s response to the Senate Judiciary Committee — is basically just a “rehashing” of previous comments about how the justices address their ethical obligations, as Fix the Court’s Gabe Roth put it.
Then there’s Justice Sam Alito. Alito brought a Wall Street Journal opinion writer and a former Reagan and George H.W. Bush official into his chambers in “mid-April” to complain that “nobody, practically nobody, is defending us,” so that the pair, James Taranto and David B. Rivkin Jr., could write a lengthy “weekend interview” column … defending Alito and the conservative justices.
The conservative justices’ responses to even the most basic level of scrutiny have made it clear that most of the discussions about how we address the Supreme Court are thinking way too small. (First of all, we’re not getting a mandatory code of conduct for justices out of this House. So, for now, that’s a nonstarter. But, even if it were possible, it wouldn’t be enough.)
If the justices won’t do anything to substantively address the issues, if Congress won’t act, if even the Democratic chair of the Judiciary Committee doesn’t appear to be up to the task, then we the people and we as journalists need to treat the court differently.
Of the Supreme Court, I wrote in February:
It is not an infallible institution whose decisions should be accepted without question. It is not a debating club that is just trying its best to figure out what the law is. And, most importantly, it is not a body that should be placed beyond public scrutiny. …
What can, and must, happen now to protect our democracy and our rights — not to mention protecting the court from itself — is to treat the court as it is: people with their own politics and interests doing government jobs.
As we enter May, those of us who cover the Supreme Court or pay attention to the court’s work, whether as part of our job or as concerned people living under the law the justices create with their rulings, must do just that.
Viewing and treating the Supreme Court and justices differently — like ordinary government officials, with all of the scrutiny that entails — will be a change for many, but it is a necessary one.
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