Congressional Dems push back against the ethical failings, extremism at SCOTUS

Impeachment, criminal investigation, and expansion — all front and center this week. Also: What happens if Trump wins and appoints new justices?

On Wednesday, Rep. Alexandria Ocasio-Cortez introduced articles of impeachment against both Justice Clarence Thomas and Justice Sam Alito.

She is not alone in announcing aggressive moves against the U.S. Supreme Court and its justices this week. We have seen, in fact, three steps that officials can take when they believe justices are violating their oaths or the law — or are just out of control.

No, as to Ocasio-Cortez’s impeachment articles, the House is not going to impeach either man. But, I do think it’s worth looking at what she says in them because they lay out, in direct terms, the scope of what has happened — particularly as to Thomas.

The articles of impeachment proposed against Thomas include failure to disclose and refusal to recuse from cases involving both the financial and legal interests of his wife, Ginni Thomas.

Thomas’s flagrant ethical failings have been front and center. There’s no news in Ocasio-Cortez’s articles of impeachment. It’s a blight on the court and our nation, though, that nothing has happened to address them.

After detailing the many undisclosed (some still unexplained) gifts that Thomas has received — including those detailed over the past year and a half in the reporting of Pro Publica and The New York Times — the disclosure article of impeachment states:

The spousal financial interest article of impeachment relates to Ginni Thomas’s business interests, Liberty Central and Liberty Consulting, and a contribution to the former by Harlan Crow and fees to the latter described in the article “as part of an arrangement devised by Leonard Leo.”

The spousal legal interest article of impeachment relates to Ginni Thomas’s efforts to overturn the 2020 presidential election and, in particular, her communications with Trump’s then-chief of staff, Mark Meadows.

The articles of impeachment proposed against Alito include a failure to disclose, apparently related to the Alaska trip reported by Pro Publica, and a refusal to recuse in cases in which he had a “personal bias or prejudice” regarding a party, which the articles of impeachment specify as the Trump and January 6 cases.

I surely agree that Alito should have recused in the Trump and January 6 cases. I’m not sure the impeachment case here is as strong as it is with Thomas, but, ultimately, that is a congressional decision. (Notably, the articles of impeachment appear to say nothing about Moore v. U.S., the income tax case on which Alito sat this term despite the ethical questions raised by his relationship with a lawyer representing a party. I think there was a strong case for his recusal there, too, as I have written.)

That’s not all, though. The day before the impeachment articles were introduced, Senators Sheldon Whitehouse and Ron Wyden announced that they asked Attorney General Merrick Garland last week to appoint a special counsel to investigate whether Thomas violated “federal ethics and tax laws” while in office.

“The scale of the potential ethics violations by Justice Thomas, and the willful pattern of disregard for ethics laws, exceeds the conduct of other government officials investigated by the Department of Justice for similar violations,” the two senators note. “The breadth of the omissions uncovered to date, and the serious possibility of additional tax fraud and false statement violations by Justice Thomas and his associates, warrant the appointment of a Special Counsel to investigate this misconduct.”

This would be an exceptional step, but Thomas’s actions are exceptional — and Chief Justice John Roberts has made it clear that the ethics of the court are not his responsibility. Roberts told Whitehouse as much, and I think it’s good of Whitehouse to present what is, at the least, a plausible option for action in the wake of that.

“No government official should be above the law,” Whitehouse and Wyden pointedly wrote to Garland on July 3.

Sure, the Supreme Court might very well hold that any such prosecution, were it to come to pass, is an unconstitutional violation of the separation of powers, especially in the wake of the Trump v. U.S. immunity decision. I don’t, however, think that in and of itself changes whether Democrats should consider such options off the table in this moment.

That’s not all that officials can do. Sen. Tina Smith announced her support — also on Tuesday — for a different type of response to the judicial extremism: Expand the Court.

In a thread, Smith explained her position, stating, “Our quarrel isn’t with the fact these justices are ‘conservative’ — it's that they've systemically undermined our checks and balances and our democratic principles in a way that should frighten us.“ I’ve written here at Law Dork about how this is so.

In response to this undermining, she backed Senator Ed Markey’s bill to expand the court from its current nine to 13 justices.

Big swings like that and smaller measures like Sen. Dick Blumenthal’s shadow docket bill previously covered at Law Dork, all must be put forward — as a way of highlighting the significance of the problems present at the court and as a reminder that there are solutions out there.

Or, as Smith wrote, “[B]eing frightened doesn’t mean we scratch our heads – it means we act.”

These efforts, further, are all the more important right now in light of the stakes — and the reality that it could get worse.

Our possible future SCOTUS

Over at The New York Times, Jay Willis of Balls and Strikes wrote on Tuesday about the potential would-be, could-be, never-should-be Supreme Court nominees in a second Trump administration.

It’s a dismal list, and he highlights Judges Kyle Duncan, James Ho, and Lawrence Van Dyke — three men on AFA Action’s list of who the far-right Christian advocacy organization wants on the bench. All three men were appointed to appeals court seats by Donald Trump in his first administration, and I think Jay is right that they’re disturbingly realistic possibilities for promotion in a second Trump administration. I still think Judge Amul Thapar is on the list, although it is clear that Mitch McConnell’s retirement diminishes home-state judge Thapar’s chances (which is likely why McConnell pushed so hard for Thapar during the first Trump administration) for promotion.

Jay also wrote about some of the non-judges whose names are circulating, including Kristen Waggoner, the head of far-right Christian legal advocacy group Alliance Defending Freedom. This would be horrible beyond words — the separation of church and state would literally become an alliance of church (her church, of course) and state.

Go read Jay’s piece. I’ll certainly be returning to judicial nominees in the weeks and months ahead here at Law Dork.