Mary Altaffer/AP Photo
The Thurgood Marshall United States Courthouse in Lower Manhattan
On Monday, after its regular three-month vacation, the nation’s highest court returned to work. During the next nine months, the court is expected to hand down arch-conservative rulings on everything from abortion to gun control to affirmative action; they might even chip away at gay marriage. In many ways, they’ve already spoiled the surprise, thanks to a number of shadow docket rulings while out of session, including the stunning move to sanctify Texas’s anti-abortion law that effectively subverts Roe v. Wade.
But don’t you dare say that the Supreme Court is a political or ideological entity. It’s above that.
Three of the Court’s most conservative justices have used their time off to browbeat the press, semi-publicly, for their perceived criticism of the Court’s crystal clear ideological agenda. Justices Amy Coney Barrett, Clarence Thomas, and Samuel Alito have made these pronouncements, with Alito taking the rare Trumpian step of going after individual journalists by name for unfavorable coverage. In a speech at Notre Dame, Alito leaned on some good old-fashioned factual inaccuracy to legitimate the court’s precedent-shattering decision on Texas’s SB 8, which illegalized the majority of the state’s abortions.
“The catchy and sinister term ‘shadow docket’ has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways,” he groused. “This portrayal feeds unprecedented efforts to intimidate the court and to damage it as an independent institution.”
The Supreme Court has been a partisan, politically motivated entity since the election of Thomas Jefferson, but Alito has correctly sussed out that its newest formation is so brazen as to make its credibility all but nonexistent, his attempt at damage control notwithstanding. Things have gotten so bad that Donald Ayer, the former principal deputy solicitor general under Reagan who helped launch the conservative takeover of the courts to which Alito and all six conservative justices owe their careers, penned an op-ed in The New York Times condemning them.
This straightforward financial corruption is different from the ideological and partisan corruption that the Supreme Court has become known for.
But it’s not just our highest court that is mired in a well-earned legitimacy crisis; it’s all of them. The corruption of the federal judiciary system, both ideological and financial, has become so total that Alito’s comments were barely the most scandalous or incendiary that the country’s justice system sustained last week.
In an incredible report from The Wall Street Journal, the paper found “more than 130 federal judges have violated U.S. law and judicial ethics by overseeing court cases involving companies in which they or their family owned stock … judges have improperly failed to disqualify themselves from 685 court cases around the nation since 2010.” Two-thirds of all federal district judges disclosed stock holdings, the report found, and 1 in 5 of those “heard at least one case involving those stocks.” These were judges appointed by Democratic and Republican presidents alike, a bipartisan affair spanning appointees from LBJ to Trump.
In one such case, Obama appointee Judge Edgardo Ramos of the New York federal court handled a case featuring an Exxon Mobil Corp. unit while owning between $15,001 and $50,000 in Exxon stock. Judge Ramos claimed through an official of the court to have been unaware of the violation, because his recusal list named “only parent Exxon Mobil Corp. and not the unit, whose name includes the additional word ‘oil.’” That excuse was belied by the reaction of Exxon itself, which reacted to the assigning of a new, impartial judge as “manifest unfairness, gross inefficiency, and waste of judicial resources.”
This straightforward financial corruption is different from the ideological and partisan corruption that the Supreme Court has become known for, but it does just as much to undermine basic impartiality and the rule of law. And it’s not the only time one of the oil majors made headlines for its scandalous proximity to the justice system last week, after attorney Steven Donziger was sentenced to six months’ imprisonment for criminal contempt charges.
Donziger, who took on Chevron for polluting the Amazon rain forest, famously won a $9.5 billion judgment in an Ecuadorian court in 2011. But that ruling was never enforced. Instead, Chevron countersued Donziger in a Manhattan court, and Southern District of New York Judge Lewis A. Kaplan went on to find Donziger guilty of bribery and fraud, in a trial decided without a jury. Kaplan himself was a former corporate lawyer with active financial holdings in Chevron at the time of the decision.
And when Donziger refused to turn over his personal electronic devices and passwords to the oil company, citing attorney-client privilege, Judge Kaplan charged him with six counts of contempt, before invoking an obscure rule to let a private law firm stand in for the government to prosecute the case. Kaplan also handpicked District Judge Loretta Preska to hear the case; she served on the advisory board of the Federalist Society, which has been the recipient of substantial donations from Chevron.
Donziger was disbarred and kept on house arrest for two years, a decision that the U.N. High Commissioner for Human Rights found to be illegal under international law. Undeterred by international condemnation, Judge Preska sentenced him to six months in prison last week.
The Biden administration has made it a mission to prioritize federal court appointments, something the Obama administration purposefully refused to pursue. Obama’s lassitude resulted in an overwhelming partisan capture in the third branch of government. President Trump famously appointed nearly as many judges to lifetime posts in his four years at the helm as Obama did in eight. And while Obama failed to usher one rapidly declining liberal octogenarian in the most important court (Justice Ginsburg) into retirement while he could successfully appoint her replacement, a new self-righteous liberal octogenarian (Justice Breyer) has taken it upon himself to reproduce that debacle under President Biden, all but ensuring a 7-2 conservative supermajority going forward.
Biden chief of staff Ron Klain, meanwhile, has repeatedly trumpeted the urgency with which the administration has filled the limited judicial vacancies on offer, trying to balance out that partisan tilt and, in some sense, restore a sheen of legitimacy to a branch that many Americans sense is profoundly compromised. That commitment has been something of a mixed bag, with Biden putting up both corporate lawyers and public-interest types.
But as these recent cases show, the legitimacy crisis runs far deeper than Obama’s misguidedness, or partisan capture. The entire justice system seems compromised profoundly by financial incentive, which has seeped so deeply into our governmental apparatus that its very foundations are rotting away.
This certainly isn’t limited to the judiciary; witness the parade of Federal Reserve officials caught trading stocks during the pandemic crisis. But the brazenness of the Supreme Court’s fealty to political ambitions openly avowed by the country’s largest corporations and the conservative political entities they fund is buttressed by a widespread commitment among lower-court justices to look out for their own financial interests. It’s corruption, big and small.
Rooting out a problem so substantial can’t be done simply by forcing Justice Breyer into retirement. Even the expansion of the Supreme Court won’t solve that problem. But it does bespeak the urgent need for Congress to enact sweeping reforms to a system whose caretakers have proven unable to uphold its basic ideals and commitments.
