Two test cases for SCOTUS's corruption

Trump's "immunity" case and a frontal assault on regulatory agencies could show us -- in the next few weeks -- how badly the Supreme Court has become corrupted by secret donors and radical ideology.

As we brace ourselves for the remaining decisions of the current Supreme Court term, we now have to ask ourselves not only how the justices arrived at such decisions but also who paid for or influenced them.

There are at least two massive problems with the very idea that Supreme Court justices are taking secret, unreported “gifts” or that they’re expressing clear sympathies on political issues upon which they will undoubtedly be asked to decide.

The appearance of impropriety

The first problem is one of appearances: the fact of Clarence Thomas’s $4 million¹ in sugar daddy money automatically renders anything he does suspect, and after learning of Samuel Alito’s flagging problem, there is simply no way to have any confidence in his impartiality on anything regarding Donald Trump or the January 6 conspiracy.

Canon 2 of the Code of Conduct for United States Judges states this longstanding principle: “A judge should avoid impropriety and the appearance of impropriety in all activities.”

Federal law takes this one step further, regarding recusals: “A justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a).

Thomas now appears to have been corrupted, at the very least. Perhaps he somehow has managed to remain indifferent to the causes and preferences of his benefactors, after they’ve taken him on dozens of luxury vacations, private jets, yachts, etc., and after they bought his mother’s house so she could continue living in it, and after they paid for private school tuition for the grandnephew that Thomas was at the time raising as his own son. Perhaps. But even if he has a heart of stone that would not be swayed by such lavish gifts, he now has the appearance of someone who has been utterly compromised by donor-activists with a very clear judicial agenda.

Alito, too, now has a very clear appearance of partiality. Flying the American flag upside down in the months after the 2020 election held an unmistakable meaning — an obvious affinity for Donald Trump and his supporters, including those who attacked the Capitol on January 6, 2021. Paired with flying the “Appeal to Heaven” flag and the meaning becomes even more stark. Samuel Alito was choosing sides. It’s that simple. And choosing sides is something that a judge may never, ever do, because now he can never be trusted.

Let’s make no mistake here: these appearances of impropriety alone are so glaring as to merit an immediate and absolutely thorough investigation by the Senate Judiciary Committee; they merit the recusal if not the outright resignation of both Justice Thomas and Justice Alito; and they may yet merit articles of impeachment to be one day brought against them both.

Yet there is a second problem here, if anything even worse than the first. It is one thing for us to say that there is an appearance of impropriety, namely, that we are left wondering whether the judge is acting improperly. And it is even worse if we are able to connect the judge’s acceptance of gifts or expression of a clear political bias with specific decisions or actions that the judge is taking — if there is not only a quid but a quo pro to go along with it.

Deciding under the influence - part 1: Chevron

In at least two cases in which decisions are about to be issued, we now need at the very least to question whether Justice Thomas and Justice Alito are committing the judicial equivalent of a DUI — deciding under the influence.

One, of course, is the question of whether Donald Trump has some sort of immunity from prosecution for the January 6 conspiracy, but we’ll get to that shortly. The other case is a bit more obscure but warrants a deep inquiry into the heart of darkness around Harlan Crow, Leonard Leo, and their pet justices; indeed, it presents the case study to show how shadowy business interests have radicalized the conservative agenda to line their own pockets and to sow chaos from which they can profit even further.

The case I have in mind is actually a pair of cases — Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce — which both concern what has long been called the “Chevron doctrine,” from a case in 1986, whereby courts will give deference to a federal agency’s interpretation of an ambiguous or open-ended federal statutory provision. In other words, generally, if there is wiggle room in what Congress passed in a statute, the agency charged with enforcing that statute gets to take the lead in interpreting that statute.

Ultimately, Chevron is about expertise — about scientists and engineers and other agency experts being given more credence than judges in certain circumstances — and that is exactly why it has come under fire as the far-right has become more and more extreme.

A bit of history is illustrative here: conservative judges like Clarence Thomas and Antonin Scalia used to support the Chevron doctrine. In fact, Thomas authored a key 2005 decision that reinforced Chevron. The majority of conservatives used to view Chevron as a helpful doctrine to support a strong executive branch led by a strong president. If Chevron occasionally meant that an environmental provision was upheld, that simply meant that the solution was to retake the White House, from the GOP’s point of view. This was conservative orthodoxy from Nixon through Dubya.

No longer. A more extreme right-wing view became ascendant in the last 15 years, holding that Chevron should be overturned. Leonard Leo’s various projects (one of which secretly paid Thomas’s wife as a consultant) have been involved in these efforts, calling for reversing Chevron, calling for cases to be heard that would reverse Chevron, and issuing amicus briefs urging for the reversal of Chevron. And Thomas’s secret luxury vacations with Leo, Crow, and the Koch brothers appears to have provided ample opportunity for Thomas to be lobbied on the issue, as ProPublica explained in disturbing detail.

In particular, Thomas was a regular guest at a secret all-male retreat called Bohemian Grove, where he spoke in 2016 shortly after Scalia’s death. While Scalia had supported Chevron, Thomas claimed that, before his death, Scalia was “coming around” to Thomas’s revised views on the subject. This carried the clear implication that those in attendance — like the Kochs, Leo, Crow, et al. — knew what Thomas’s revised views were.

Thomas has now done a total 180-degree turn on the subject, stating in multiple decisions now, especially one in 2020, that he believes his previous decisions were in error — and it would not be surprising in the slightest if Thomas ends up being the author of a majority opinion reversing Chevron this term.

This is appalling, to say the least. There is absolutely no legitimate reason why Thomas should have been discussing the Chevron doctrine AT ALL outside the confines of the Supreme Court, given that it’s the subject of regular appellate litigation — let alone discussing it with the leader of a network of lobbying and interest groups dedicated to influencing SCOTUS and other major courts (Leo), the head of one of the largest real estate developers and landlords in America (Crow), and the heads of the largest privately-held industrial conglomerate in America (the Kochs). In other words, individuals with a very strong financial interest in seeing Chevron go away, so that their handpicked judges can more easily second-guess and overrule the federal agency decision-makers they have not yet been able to lobby and co-opt.

And therein lies the issue. The far-right interests who are trying to dismantle Chevron want to be able to pollute and to develop real estate with impunity, which could be environmentally devastating — but that’s just the beginning.

The end of Chevron, given the radicalness of the right today, would likely be a Pandora’s box of horrible outcomes, as not only business interests but far-right social groups get in on the action.

What do you think will happen to the FDA or NIH if federal judges no longer have to defer to FDA or NIH scientists regarding their decisions on the safety or efficacy of a drug? Or a vaccine?

What do you think will happen to mifepristone? Or to the next life-saving vaccine or other treatment that is developed to stop or stem the next major global pandemic?

What has happened here is very simple. Right-wing interests (led by Leo) have successfully infiltrated much of the federal judiciary and stacked the bench with loyal ideologues — and now those same right-wing interests want to empower those ideologues not only to decide cases but to make (or remake) federal policy. Every single federal judge could now become a sort of super-administrator or super-bureaucrat, bypassing the agencies. And Congress. And even an unfriendly president. In this scenario, even if President Biden wins re-election, a jacked-up judiciary could still try to force its will upon America even in the face of a clear popular will to the contrary.

If Thomas discards 40 years of jurisprudence, much of it from conservative justices — including his own decisions — and manages to convince other justices to go along with a radical overturning of Chevron, then it is absolutely a fair and crucial question to ask how we got here.

And who paid for it.

Deciding under the influence - part 2: Flag Day

This of course leaves us with the better-known and much more meme-able situation of Justice Alito and his flagpole — although we should include Justice Thomas in this section as well.

Here, we should be looking not only at the Trump “immunity” case but also any case related to January 6. How will Alito rule on these cases? During the oral argument in the immunity case, he seemed to be the most aggressive supporter of Donald Trump’s position. Will he actually render a decision in the same vein? Will his judicial opinions match his apparently extreme personal views? Not only did he display support for Trump and the January 6 attackers — and the Christian Nationalist movement — but he then told activist/journalist Lauren Windsor that he believes in an all-or-nothing worldview in which many political compromises are impossible and one side or the other will win completely.

To put it lightly, there is nothing more incompatible with a “judicial temperament.”

The common imagery of justice involves a scale — balancing interests, weighing evidence and arguments. To Samuel Alito, the court is apparently a field of Armageddon where one side or the other must win total victory.

Is this how Alito has always been? Or as he been influenced by others since he took his seat on the Court?

Clarence Thomas must also bear watching here, even if he didn’t run his sympathies up a flagpole for everyone to see. Of course, he didn’t need to, given that his wife Virginia “Ginny” Thomas was an actual participant in Trump’s attempts to overturn the 2020 election — calling up state legislators in Arizona and elsewhere to lobby them, texting with Mark Meadows, etc. And Thomas was the one lone justice who supported Trump’s last-gasp efforts to convince the courts to perform some sort of deus ex machina recount — and also Trump’s attempt to stop Congress from getting its hands on presidential records related to the investigation of January 6.

So how will Thomas handle the immunity case and other upcoming cases? Will he continue to be an ally for the insurrectionists?

Every step Thomas and Alito continue to take in support of Trump and his co-conspirators and allies outs them as extremists and raises grave questions as to their impartiality — and their fitness to continue serving on the bench.

Every case they now decide is another potential exhibit in a future trial against them — whether in the impeachment proceedings they appear to deserve so richly, or in the judgment of historians who may be looking back centuries from now at exactly what led to the demise of the American Republic.

This is all the more reason why the Senate must stop admonishing, or attempting to legislate (when no such bill will ever survive a filibuster, let alone pass the GOP-led House), when they could and should be launching an all-out investigation into corruption and extremism on the Supreme Court. Today.

And it is also all the more reason — when one considers that Thomas and Alito happen to be the two oldest members of the Court — why the 2024 election is even more critical than you think.

1. And counting. We just found out about 3 more previously unreported luxury trips. How many more were there?!? And how much other financial support did Thomas and his family receive?