Equal Justice Under Law. That motto is both aspirational and descriptive; in four words, it summarizes the whole point of the rule of law–the founding premise of America’s Constitution and Bill of Rights. Well-paid lobbyists may influence legislation to give Group A an advantage over Group B, elected officials may listen more carefully to people who wrote big checks to their campaigns, but citizens are supposed to be able to appeal for justice to the nation’s courts, and those courts are supposed to administer equal justice under the law.
Granted, it has never worked that seamlessly. Judges are human, with human biases and foibles. Laws are often opaque. Access to the nation’s courts requires resources–either substantial funds or representation by one of the country’s public interest law firms, like the ACLU or Lambda Legal. But for a long time, America’s courts–especially its federal courts–have been there to redress inequality and corruption and instances of fundamental unfairness.
Now, thanks in large part to Mitch McConnell and Donald Trump, the Supreme Court itself has been corrupted. Any doubts on that score were laid to rest during the Court’s eye-opening and frequently chilling hearing on Trump’s ridiculous “immunity” claims. Those claims had been summarily and properly dismissed by the lower courts, and I fully expected the Supreme Court to follow suit. After all, the Court’s unnecessary delay in addressing the claim had given Trump what most observers knew he really wanted: a delay. The appeal was a transparent effort to postpone Jack Smith’s case until after the election, and most of us who were following the case expected the Court–having given him that delay– would rule on the merits by affirming that no one is above the law.
I will leave further discussion and analysis of that oral argument to the multitude of observers who found it appalling, because I want to address other aspects of the high court’s corruption that are relevant to the widespread loss of respect for that body and to the growing calls to expand its membership.
Over the past few years, Americans have learned about the truly gob-smacking conflicts of interest, money-grubbing and pious dishonesty of Clarence Thomas and Samuel Alito. The head of the Alliance for Justice pulled no punches:
Today, our republic is buckling under the weight of those misdeeds, as Americans no longer trust their Supreme Court to be a citadel of democracy and justice. Quite the opposite — they have come to expect the worst from our pay-for-performance judiciary. Are we really going to stand idly by and do nothing about this corruption?”
A recent article from The Intercept pointed to a lesser-known but no less troubling influence of money on the Court. The article focused on a case challenging two states’ efforts to limit social media moderation of user-posted content (which Texas Attorney General Ken Paxton equated to “censorship) then turned to the broader issue of influence.
After the Supreme Court wraps up arguments for the current term next week, it will turn to finalizing decisions in dozens of pending matters, including these social media cases plus high-stakes cases about abortion, guns, the limits of presidential immunity, and how the federal regulatory apparatus itself functions. In doing so, the justices will have a chance to review hundreds of amicus briefs.
Like the money spent on elections, the money spent on the deluge of amicus briefs each term is incredibly difficult to track. The Supreme Court’s disclosure rule for amicus briefs is quite narrow, requiring only a footnote that indicates whether there were any outside monetary contributions “intended to fund the preparation or submission” of that specific brief.
The article quoted Sarah Lipton-Lubet, president of Take Back the Court,
“It’s no secret that the many of the rich benefactors cozying up to the conservative justices are the same people who fund right-wing organizations with business before the court. But too often, stories about the Supreme Court don’t connect these dots — and as a result, they leave us with an incomplete picture.”
A reform bill authored by Senator Sheldon Whitehouse–described in the Intercept article– would be a good first step, but it is past time to consider enlarging the Court and imposing 18-year term limits on Justices, among other measures that are being considered. (When lifetime tenure was established, people didn’t live as long as they do today. Eighteen years is sufficient to accomplish the goal of lifetime terms, which was to insulate the Justices from political pressure.)
The Court has never been the unblemished guardian of liberty that we like to think, but its current, shameful partisanship and outright corruption are a new low. It’s time for a change.
A recent story opined: Trump says he is a king. The court says “Interesting – We will have to think about that. We will get back to you — Later…MUCH later ”
These are scary times. WHAT is going on?
Watching the oral arguments before the Supreme Court, the outstanding comment/question from one justice still eats away at me. “Was Trump trying to overturn the election as President or as a candidate for President?” (paraphrased)
His culinary preference for fast foods makes me question; when ordering a Big Mac and double fries, was he ordering as the President or as a hungry President?
The current political/religious majority of SCOTUS will probably use that as the basis for their ultimate decision regarding protection of Trump as being above all Rule of Law of this nation. And they will take their time reaching this decision as added protection from conviction of Trump; the world watches as the outcome of this decision will have global ramifications.
Of course one cannot ask justices questions in oral argument. I’ve had more than a few oral arguments before appellate panels. One can nudge statements a bit, though, via hypotheticals. “Let’s say trump again steals the Oval Office. Each day do justices on this Court waken in fear? He might decide you didn’t keep your end of the bargain that put you on the Supreme Court for life. Would he have immunity for ordering you killed because his order would be an official act?”
The courts will not save us. We must defeat tr*mp at the polls.
Clarence Thomas has turned out to be as awful an associate justice as I anticipated when he was confirmed 30 some years ago. His confirmation revealed a pattern of sexual harassment with Anita Hill as the utterly believable witness and quashed by chair Joe Biden (he does regret that), as this future associate came to the highest court in the land with barely one year of judicial experience. He proceeded to remain silent in all of the court’s deliberations, not asking a single question, FOR 10 YEARS! During his stay on the court he has enjoyed an overwhelming plethora of cash, paid vacations and gifts that defy the imagination in scope and ethical boundaries. His voting record has only been surpassed by Mr. Alito in negativity and lack of social justice. Recusal from any deliberations that had any connection whatsoever to the January 6th insurrection – where wife Ginny was a PARTICIPANT, communicating actual encouragement with folks like Mark Meadows – would seem to me to be a no brainer, but of course that didn’t happen, exposing hubris the size of Texas. Let us pray that the questioning in the presidential immunity case by Amy Coney Barrett seemingly aligning her with those of Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, will be joined by John Roberts (remember the Affordable Care Act?) in a 5-4 refusal to grant immunity. I realize trump already has his delay, and suspect that the ruling – which never should have been taken up by SCOTUS in the first place (ask ANY reputable law scholar) – will be nuanced and require more ruling(s), with of course more delays. It is IMPERATIVE that Biden – the one who unequivocally supports the US Constitution – is re-elected. Or we are all doomed. Simple as that.
As a colleague is fond of saying, “Lady Justice may be blind, but she does accept Visa.”
Courts and laws do not matter anymore. The courts are rigged to favor the wealthy. Speaking of wealthy. The billionaires and/or donor class have demanded violent police actions against pro-Palestinian protesters. A Kent State v2.0 is coming soon. Biden and his donor-class are out for blood.
It is 1968. The Democratic Convention is going to be gnarly.
This administration failed its duty. I’m so sorry I voted for this brain addled clown.
I’m terrified of Trump being re-elected. The thought haunts me day in and day out. The reality of his evil spirit is so far reaching that I have become convinced that the world is split into two parts and those who are his followers, and ‘believers’ are not eligible for any trust or respect. Never have I perceived the world in such black and white terms. I don’t want to believe that there isn’t a way out. But I’m not sure if I can have faith that there is. I’m sorry to be such a downer, but where do we find hope? How many cheeseburgers will it take?
Like most of our “democratic institutions,” the SCOTUS has been corrupted beyond repair. Trust in the courts has fallen to around 11-12%, which means 90% of Americans don’t expect the high court to make an uncorrupted decision.
And yes, Trump could murder his opponents and be protected by immunity.
The Democratic faithful rallied around Biden and shook sticks at others, saying they must vote for their man. However, Biden kills his chances all by himself. He already didn’t want to venture onto campuses because he was afraid of getting interrupted by students reminding him he was committing genocide in Gaza.
That wasn’t enough, so he sent the state police to break up encampments. He placed snipers on the roof. Arrested professors of economics and philosophy. Joe’s exodus from Afghanistan was a clusterfuc*. War with Russia has been expensive and deadly. Sanctions against China are protectionism, which always backfire.
The unipolar world is crumbling. The multipolar world is rising quickly, and the US cannot handle it. Washington is a corrupted infestation of sociopathy and narcissism. Washington is banning and sanctioning everything that moves to hang on to power. Wait until China and Russia follow suit.
The court system is just a symptom of the rot where capitalism eats itself from the inside. It was inevitable.
Ian,
Again the sudden, virulent, and violent reaction by the right to to pro Palestinian protests as well as the sudden public extremism by the protestors might speak to A LOT of foreign state actors pushing influence on social media. It just seems to follow the same pattern of extreme political stances that have taken over Putin wing of the Republican party. Biden’s recent actions are just the seed of truth to make extreme positions on both sides more “acceptable”.
Unrestrained “Free Speech” fostered by Social Media is going to kill democracy in the world. The inevitable real world consequences makes it a race to see if Russia or Israel will be able to start WWIII.
Putin,Putin,Putin is getting.
I guess one cannot oppose ethnic cleansing without the influence of a nefarious Putin.
Colleges are aflame. Biden approves billions to human slave traders in Ukraine and Biden facilitates ethnic cleansing by capitulation to criminal Netanyahu.
I guess Putin was behind the Vietnam protests back in the day as well?
Who knew fascism would arrive via the Democratic Party?
You’ve lost the youth vote.
Blaming Putin and rural folks for everything has become tired.
Biden is the new Johnson and Nixon
Dan, what does this mean? “sudden public extremism by the protestors” [sic]
The kids are protesting a genocide videotaped live on their phones. Mossad is posting on social media that students protesting will be captured via facial recognition software and will be blackballed from ever getting jobs in the US.
If Russia or China ever said anything like that, Washington would erupt! However, it’s okay if Israel interferes in our “democracy.”
Btw, we aren’t living in a democracy. Ask the economics professor from Emory University who got body slammed to the ground face-first by a state cop.
Interesting verbal combat today with two of the least qualified to make affirmative statements about President Biden … or anything else. No, Ian, fascism is the sole territory of the RIGHT, not the left. Stop looking in the mirror. And NO, Todd, Biden is NOT responsible for genocide. You misspelled the real culprit, although it does take some care and concentration to spell Netanyahu. Keep working at it.
The sum of today’s lament is indeed the corrupt SCOTUS. Then, what would we expect from Republican presidents appointing Federalist Society Justices. It’s what they are and what they do. Have you seen the bullshit that Hillsdale “College” is advertising. Aren’t they the book writers for the Federalists?
Yes, the only way out of this sewer we call government is to give Biden 4 more years and a super-majority Senate and House. THEN we can get the court expanded. THEN we can get rid of the filibuster. THEN we can deal with eliminating gerrymandering. THEN we can get an amendment to end the electoral college. THEN we can get enough honest judges to overturn the god-awful Citizens United decision. THEN we can restore women’s rights.
There’s a lot to do to save our democracy and our Constitution, and spewing idiocy is not the task required.
Our job as voters is to maintain a government, election by election, that believes in our Constitution and acts accordingly every day,
There is much evidence of our failure to fulfill that responsibility.
The good news is that we have found the chinks in the armor of Constitutionality.
The bad news is that what has come through those chinks has no intention of fixing the problem that gave them a career.
Thank you, Vernon. And Todd still hasn’t answered the question I keep asking him. Todd, with your attacks on Biden, you are increasing the chances that Trump will win. Is that what you want?
Stepping back for a wider view of the country today I see a Republican Party doing ANYTHING to protect the money making abilities of the rich and powerful while a Democrat Party tries to hold on to and re-build the status quo thinking that will keep the country together. Meanwhile, a majority of the voters have been hatefully pitted against each other as a minority longs for a dynamic leader who can actually articulate their desires.
It is a mess.
“Yes, the only way out of this sewer we call government is to give Biden 4 more years and a super-majority Senate and House. THEN we can get the court expanded. THEN we can get rid of the filibuster. THEN we can deal with eliminating gerrymandering. THEN we can get an amendment to end the electoral college. THEN we can get enough honest judges to overturn the god-awful Citizens United decision. THEN we can restore women’s rights.”
AMEN!
Some of us seem to believe that our leaders must be perfect and see the world exactly as they do. I take the view that the real world isn’t capable of getting it right every time. I support Biden, not because I think he’s going to do what I want, but because I’m a realist. He, if given the chance, will do more things that I can support than any of his opponents.
Politics is the art of compromise. It’s a good bill if everyone gets some of what they want but nobody gets all of what they want. If nobody’s happy, that’s good. It’s going to take a long time to reach perfection, if we ever do.
As to the protesters, once upon a time that would have been me. I escaped arrest by deciding I needed a good night’s sleep and going home the night the protest was broken up. The protests have been peaceful until the police were sent in, and after as well for the most part.
If you want to pin the blame on someone for overreaction, let’s start with Elise Stefanik and Lisa McClain and other Republican members of the House Education and Workforce Committee. They have been instrumental in the resignations of three university Presidents. The firestorm started after they trained their sights on number four, who needed to prove her bona fides by getting tough on the anti-Netanyahu/ Israel protesters, some of whom are actually Jewish.
What Vernon wrote. I, like Mark Small, have argued before appellate courts but not the Supreme Court, to whose bar I was admitted but from which I resigned after Bush v. Gore, noting in my resignation letter to the Clerk that I did not wish to remain a member of the bar of a court that itself acted unconstitionally.
The present Supreme Court manufactures issues not raised in the appeals before them (the Trump immunity case), ignores stare decisis (Dobbs), and generally goes off on factual tangents that fit their pre-ordained views of the “legal” result. Johnson and his wife provide another and more obvious aspect of pay for play corruption by the court.
As Vernon correctly notes, we Democrats must not only win but win big time come November in order to correct some of these democracy-ending attempts by the Magas to, inter alia, invest a president with murder rights of political opponents, which would include those who do budgets, tax, and otherwise govern as well as anybody else who may by definition of the president be “political opponents.”
We are being asked by a defunct political party captured by fascists to vote for a candidate for president who openly tells us that he will be a dictator, as if we didn’t already know that. My answer is n e v e r. . .
I am on my way to Early Voting in the Primary TODAY. How about you all?
Now that Noem has killed her dog she will have gone up on the list of possible VPs for Trump (she’s already on the list). She can help him kill “political opponents” as soon as the Supreme Court decides whether such murders to be committed are carried out in a private or official capacity per Alito, and here I thought one’s job was an immaterial issue in homocide cases.
Just be happy with what you have. It’s a crazy wild world out there.
Susanne;
If you want to keep what you have. Vote straight Blue! The Republican color is Red, just like the Communists!