If the America we thought we inhabited increasingly seems to be circling the drain, the blatant corruption of the nation’s high court bears much of the blame. A recent essay by Josh Marshall, editor of Talking Points Memo, provided a good overview of that corruption.
That essay sheds a light on the enormity of the Court’s deviation from–and arguably trashing of–the U.S. Constitution. The title of the essay is stark, but accurate: “You Can Have Democracy or the Corrupt Court–But Not Both.”
Marshall sets out his thesis in the first paragraph.
Within the system begun with Marbury v. Madison — a system certainly subject to many reasonable critiques — it is possible to have more liberal or conservative jurisprudences, more activist or restrained courts, loosely tethered to the progress of presidencies and senates. The Roberts Court is a different beast. It is the product of a decades-long effort to corrupt the federal judiciary. That degree of corruption first came into full view in the second decade of this century when the Court openly began to do three closely interrelated but conceptually distinct things.
The first of those three things is the jettisoning of stare decisis, the legal word meaning respect for precedent. The Roberts Court has, as Marshall reminds us, “manufactured new doctrines and purported constitutional dictates which simply do not exist in the document.” Some of these previously unknown doctrines are inconsistent with the plain text of the Constitution. Marshall says that the greatest example is the presidential immunity decision, which was, as legal observers have argued, “a ruling contradicted not only by all the history of the document but its clear language.” Marshall is absolutely correct to characterize it as “corrupt, illegitimate and a wholesale attack on the Constitution itself.” (As he also points out, the mere fact that the Court accepted the birthright citizenship case demonstrates that it has determined to ignore the clear meaning of the the language in the Constitution.)
Marshall’s second point is closely related to the first: this is a Court with political goals rather than a defensible jurisprudence. It chooses arguments for convenience in order to arrive at an ideologically desired end. He cites a recent example:
Presidents can fire anyone in the executive branch based on nothing more than the presidential will, even when Congress has specifically given those appointees protections against such dismissals. Except the Federal Reserve, even thought it is by every measure an independent federal agency constitutionally indistinguishable from the rest. Why is it different? Because Federalist Society ideologues actually don’t like inflationary monetary policy. So in this one case, it’s different … except when it’s not.
Third–and most obvious–political power is for Republicans only. As Marshall reminds us, when Republicans are in power, Presidential powers are almost limitless; “when it’s Democrats, the office is enfeebled and hemmed in by a cobweb of invented doctrines,” something made painfully obvious by decisions rendered during the two Trump presidencies versus Biden’s.
Perhaps the most important point Marshall makes is that the word “corruption” is not limited to “venal corruption” (bribery, conflicts of interest, “kept justices like Clarence Thomas”). Those sorts of corrupt behaviors eventually get exposed. A more covert, general–and worrisome– corruption is a form of rot that becomes “a systemic and ingrained abuse of power.”
That is the case with the Supreme Court, and it’s especially dangerous with the Supreme Court because a mix of history and restraint have left very few checks on its abuses. The corruption has spun so far out of control because the six corrupt appointees believe, not unreasonably, that there are zero checks on their abuses. It is that sustained lack of accountability and impunity which moves an institution from one-off abuses of power toward the kind of ingrained corruption you now see in the Supreme Court.
That’s the corruption that has become ever more evident in the increasing brazenness of the Roberts Court, which frequently ignores the appellate process, the fact-finding of trials, and long-standing issues governing the right to sue. As Marshall says, “The corruption runs so deep there is simply little effort any more to hide it.”
Most lawyers I know have been reluctant to embrace Court reforms, but as this Court continues to assume previously unknown powers–as it has misused its Shadow Docket and embraced obviously anti-constitutional ends– more and more of us have come to recognize the imperative of reigning it in if we are to save America’s constitutional democracy.
As Marshall says, this Court is not interpreting the Constitution. It is undermining it.
“As Marshall says, this Court is not interpreting the Constitution. It is undermining it.”
Well, yes. Of course. The Republican-appointed Justices come from the fetid pool of corruption known as the Federalist Society. This star chamber of nincompoops is corporate America flaunting their wealth to obtain fascist power. They think that power will last forever. Well, so did the Russian Tsars.
Speaking of nincompoops: Both Bushes, Reagan, Trump. Tragically, the latter is also a psychopath.
Dark times. The world is being operated by the worst people, for all the wrong reasons. How much longer?
The most recent Supreme Court appointees sat through public hearing and all swore under oath that they would NOT overturn past SCOTUS decisions and almost immediately began doing just that. The fact that those latest additions to the court were of blatant questionable character and openly lied was ignored by the McConnell followers was obvious to all who watched the hearings. Kavanaugh was an especially offensive selection after the earlier hearing regarding his drunken and rape accusation in his past, the investigation which was limited by Trump to the four witnesses named by his accuser who stated they remembered nothing about the party where the incident happened and Trump only allowed two weeks for the questioning of the limited list. Kavanaugh’s alcoholic lifestyle was presented at the SCOTUS hearing and he cried, pleading for understanding. The same alcoholic problems are now sitting in Trump’s Cabinet with full powers to overturn democracy, Rule of Law and the Constitution. They support the killings and abuses internally and global wars and insane changing decisions and reported conditions in Trump’s war on Iran as they pass bills for us to pay for a Gold Ballroom no president or political party has ever considered a necessity to run this nation. Nor have any of them ordered the destruction of the White House and grounds or ordered their names and faces be applied to public buildings or on our money. We have no way of knowing what destruction he has accomplished inside the White House except for the replacement of the portrait of President Barack Obama with his own.
If not for the killing, including a school filled with young girls in Iran, the rampant destruction by Trump, fully sanctioned by the Supreme Court, the United States would be the source of global laughter and ridicule. There appears to be no authority over the sedition and treason being carried out by the current Legislature, Executive and Judicial branches of government.
And what would the remedies look like? Assuming the Dems take control of one or both chambers in November’s blue wave, followed by some Dem candidate for POTUS in 2028, let’s say term limits for SCOTUS are passed. That would apply only to incoming justices I would assume, so good for future courts but for now, and perhaps even after djt replaces retiring Alito and Thomas with equally maga right wing Federalists, nothing changes. Articles of Impeachment have been tried before, but the bar is very high, and only one has been successful in history, with the Senate unable to convict; recent introduction efforts never made it. Pack the court? Might be the only answer.
Pack the court, and try impeachment again, because the Roberts folks are so flagrantly off the mark.
Changing the subject, but this just came out, last night- Call it Dear Leader Derangement:
https://www.rawstory.com/trump-mental-health-2676857224/?utm_source=Iterable&utm_medium=email&utm_campaign=May.6.2026_12.00pm
I would love to see Court reform take center stage, starting with thirteen justices for thirteen circuits. We can then look at term limits. They need to be long. I suggest twenty to twenty-five years. After that time, they can retire from the bench with a really decent pension and the thanks of a grateful nation. If we happen to get that blue tsunami that many of us are praying for, we need to begin impeachment proceedings for Justices Thomas and Alito for corruption.
Those priorities should keep the Judiciary committees busy while budget and finance committees focus on making laws to enforce the emoluments clause.
VOTE!!!
Worry about impeachment.
13 justices for 13 circuits sounds like a better move.
Is it possible???
And yet another clown emerges from the make-up room: Little Lindsay Graham shot his mouth off on Fox that we should arm the Iranians and let them kill each other off. Yeah. A U.S. Senator …
I can just hear his old mother yelling at him: “Lindsay! Stop drinkin’ that paint!”
There does not appear to be any will or organizing effort to reform the SCOTUS. Three of the current Justices lied under oath without consequence. At least 2 of the Justices have committed fraud in reporting income on disclosure statements and tax returns related to themselves and their partners.
The lack of trust in the integrity and ethical standards of the SCOTUS undermines trust in the judicial system at all levels when the highest members of the judiciary are unethical, corrupt and partisan for personal gain. Protected by the wealthy 1% who use every tool they can buy to keep that branch under their control, the individual voter has little hope of changing things.
We have only to look at what goes on in Indiana counties to understand how deep the corruption goes. Several (almost all Republican) sheriffs have been indicted for fraud and corruption. Judges in those jurisdictions had to have a least an inkling of what was going on unless they deliberately turned a blind eye to the elaborate lifestyles of the government officials with no other occupation other than law enforcement.
When the corruption is so blatant, especially in counties with populations under 50K, the size of a small city, everyone knows what pushing back will get you. It could mean social and financial repercussions that are often subtle but very effective.
Much of this kind of corruption is so firmly embedded in those communities, has entangled so many families, that it has become the norm to expect any officeholder, including judges, to comply with the existing power structure.
I lived in a small town in the 50s and watched it up close. Not much has changed since then as far as I can see.
JD, your comment here makes me think that corruption as we all describe it is part of our hard-wired tribal survival behavior. Maybe being honest and forthright is just an intellectual exercise that worked for a while as our “tribes” got bigger.
The argument by evolution always reeks of resignation and doomerism. Maybe we should stick to hope, but not just as a strategy. We can keep evolving, change for the better. Humanism, as they say.