Yuri Gripas/Abaca/Sipa USA via AP Images
An activist speaks during a press conference to call on Supreme Court Justice Clarence Thomas to resign, April 19, 2023, on Capitol Hill in Washington.
Ever since Republicans secured control of the Supreme Court through cheating and good luck, Democrats have floundered around trying to figure out what to do. Remember that Mitch McConnell violated all precedent by refusing to even hold hearings on Barack Obama’s nominee to replace Antonin Scalia back in 2016—and arguably violated the Constitution as well, which says that the Senate gets to confirm or reject nominees, not hold a seat open indefinitely with the hope that your guy will win the next election.
Sure enough, Donald Trump got to fill that seat, and another when Anthony Kennedy retired, and then another when Ruth Bader Ginsburg died after foolishly refusing to retire under Obama. Now, with a 6-3 reactionary supermajority, without some action changing the status quo it is unlikely that Democrats will ever again have a majority on the Court. They would probably have to win the next two or even three presidential elections, and also control the Senate when two of the conservatives finally croak.
This Court has been one of the worst in American history, constantly striking down Biden administration regulations and rules (typically on ridiculous grounds), enabling the right-wing assault on American democracy, and of course doing nothing about the conservative attack on LGBT civil rights.
If they want to be able to confront the many crises besetting America, or simply preserve our democratic institutions, Democrats need a strategy. Simply sitting around for ten years and hoping Clarence Thomas shuffles off this mortal coil is not going to cut it. The most obvious solution would be to add more seats to the Court, which has been done many times in the past. Or President Biden could simply declare he no longer respects the principle of judicial review (as I have advocated).
So far, Biden and other top Democrats have dismissed these options out of hand. The president’s big commission on what to do about judicial tyranny ended with a shrug. Indeed, party elites often sound most concerned with preserving the Court’s legitimacy, like someone offering to hold his arms behind his back so a bully can more easily pummel him.
However, journalists (including us at the Prospect) have recently demonstrated an alternative strategy available to Democrats: investigations and political pressure.
ProPublica got the ball rolling with a blockbuster report on Justice Clarence Thomas’s two-decade history of rolling in the Caligula-esque largesse of right-wing billionaire Harlan Crow. Joshua Kaplan, Justin Elliott, and Alex Mierjeski detailed how Thomas has enjoyed luxury cruises on Crow’s 162-foot mega-yacht, flown around on his private jet, taken regular vacations at his private ranch, and more, without disclosing any of it. That is certainly an ethical violation and arguably a violation of federal law, which requires federal officials to disclose most gifts.
Then the same journalists reported that Crow had bought property owned by Thomas back in 2014, including the home where his mother lives. Crow not only made extensive upgrades to the house, but also allows Thomas’s mother to live there rent-free. Thomas didn’t disclose that either—and tacitly admitted to an ethical violation at least by amending his previous disclosure forms. (Apparently justices can just do a “backsies” when they run afoul of the law.)
Blatant corruption on the Court is even more outrageous when the Court has done more than anyone to unleash a tsunami of money in politics.
Then Zoe Tillman at Bloomberg reported that despite Thomas’s claim that not disclosing was fine because Crow “did not have business before the Court,” he was indeed involved in a 2005 case. There, Thomas joined the majority rejecting an appeal from an architecture firm suing a company Crow owned an interest in.
Perhaps sensing a rich vein of potential scandal, Politico has now joined the fray with an article about Justice Neil Gorsuch. Heidi Przybyla reports that just nine days after being confirmed to the Court, Gorsuch (together with two co-owners) sold a 40-acre property with a 3,000-square-foot log cabin in Granby, Colorado, to Brian Duffy for $1.825 million. Gorsuch had a 20 percent stake, so that would have netted him $365,000. Gorsuch did disclose making between a quarter and half a million dollars, but he left the box indicating the identity of the purchaser blank.
Wouldn’t you know it, Duffy is the chief executive of Greenberg Traurig, a major law firm that routinely has business before the Court. “Since [the sale], Greenberg Traurig has been involved in at least 22 cases before or presented to the court,” Przybyla writes, including working for conservative states in the infamous case where a majority, including Gorsuch, struck down Obama’s plan for the EPA to regulate greenhouse gas emissions from power plants, despite the plan having never gone into effect. (Congress partially restored the EPA’s power in the Inflation Reduction Act.)
This kind of reporting can constrain the Court’s power in at least two ways. First, it will make the justices rightly nervous about their political legitimacy. While the Court is insulated almost entirely from any formal accountability, its members are human beings, sensitive to some degree to how they are perceived by society. All else equal, justices will be more hesitant to trample all over Congress and the president when their blatantly unethical behavior is all over the news (except Thomas, probably). Doing so might fuel future Democratic victories, or put real momentum behind Court reform efforts.
That is doubly true because the Court itself has de facto legalized political corruption. In Citizens United, it struck down most rules on campaign financing; it overturned the bribery conviction of former Virginia Gov. Bob McDonnell; and it struck down a law prohibiting political candidates from repaying personal loans to their campaign with post-election donations, meaning that interested parties can effectively place bribes directly into the pockets of our elected representatives. (The McDonnell decision was unanimous, by the way, which tends to suggest it isn’t just the conservatives who are the problem.) Blatant corruption on the Court is even more outrageous when the Court has done more than anyone to unleash a tsunami of money in politics.
Second, and more practically, these ethical violations are strong evidence for arguments that the justices should recuse themselves more often. And sometimes, shame even works.
Here at the Prospect, for instance, Hannah Story Brown recently argued that Justice Alito should recuse himself from a decision about whether the Court would hear a case from oil companies that faced state lawsuits seeking damages for lying about climate change, because he owns a bunch of stock in other oil companies. Remarkably, Alito actually did recuse, and the Court declined to hear the case. By the same token, if Gorsuch’s property sale had been public knowledge at the time, outsiders might have pressured him to recuse from the EPA case, and all the others Greenberg had been involved with.
This is of course no replacement for genuine Court reform. Investigations and pressure might put the reactionary majority on the back foot, and swing some decisions here and there, but it won’t end judicial tyranny or make the Court democratically accountable. Still, I’d guess that all this has barely scratched the surface of the Court’s corruption. For instance, we still have no idea who paid off Brett Kavanaugh’s tens of thousands of dollars of credit card debt and loans, supposedly to buy baseball tickets.
Thus far, Democrats in Congress have not seized the opportunity. Judiciary Committee chair Dick Durbin (D-IL) pathetically didn’t even request that Thomas testify before the committee, because “it would be ignored,” much less subpoena him. Indeed, Judiciary Democrats can’t subpoena anyone because Sen. Dianne Feinstein (D-CA) has been out sick since February, and so they don’t have a majority on the committee. They would have to replace her or change the Senate rules, and thus far haven’t done either. Instead, Durbin timidly asked Chief Justice Roberts to investigate Thomas and testify before the committee. (Roberts punted the investigation request to an external ethics committee and then refused to testify as well.)
That doesn’t tie the hands of other Senate committees, however. The Gorsuch story was about an EPA case; the Senate Committee on Energy and Natural Resources could investigate (if Joe Manchin wasn’t its chair), or the Committee on Environment and Public Works. Sen. Sheldon Whitehouse (D-RI) has been insistent about the Supreme Court and dark money for years (he held hearings about it in 2021); he could use his Senate office to investigate. And the Senate Permanent Subcommittee on Investigations, which can look into most anything it likes, needs only the chair’s approval to issue subpoenas. Sen. Richard Blumenthal (D-CT) could do it by himself.
John Roberts is not going to do Democrats’ job for them—on the contrary, he has major ethics problems himself involving his wife that should also be subject to Senate scrutiny. What is called for is a major investigation into every aspect of the justices’ finances, and a full-court press rollout detailing every instance of corruption found. Until we get new leadership in the Senate, maybe journalism will have to do. But it doesn’t have to be that way.
