SCOTUS is ethically deaf and built to stay that way
BONUS: Over the transom shorties ...
Early readers of Red Meat For Mushy Moderates might recall my initial obsession with the Supreme Court of the United States and its outrageous lack of an ethics code that would hold in check the unseemly extracurricular activities of certain justices on the high court.
I was mostly fuming over Clarence Thomas’ frequent ethical lapses, most recently his acceptance of luxury vacations from the billionaire real estate magnate and Republican mega-donor Harlan Crow, who later had interests before the court. We later learned that Justice Sonia Sotomayor used her SCOTUS staff to persuade “libraries, universities and other public institutions to buy her books ahead of speaking appearances and that she had failed to recuse herself from legal cases involving her book publisher.”
The latest mini-scandal involves Justice Samuel Alito, whose Alexandria, Virginia, home flew an upside-down American flag for awhile after the 2020 presidential election. An inverted American flag has long been seen as a distress signal. That might not sound like such a big deal on Alito’s part, but as reported by the New York Times (30-day free gift link):
After the 2020 presidential election, as some Trump supporters falsely claimed that President Biden had stolen the office, many of them displayed a startling symbol outside their homes, on their cars and in online posts: an upside-down American flag.
In addition, several of the attackers at the January 6, 2021, riot at the Capitol were carrying upside-down U.S. flags, which they had brandished as part of the so-called “Stop The Steal” movement.
As the Times has noted, while the flag was flying proudly at Alito’s house on Jan. 17, the SCOTUS was mulling a request to hear a 2020 election case, with Alito ultimately dissenting in the court’s decision not to hear the case. Furthermore, the Times added, in the next few months the justices will rule on two important cases concerning the Jan. 6 riot, including whether Trump can enjoy immunity for his actions. Their decisions will be crucial in determining whether the former president can be held accountable for trying to change the results of his own unsuccessful reelection bid.
Asked why the Stop The Steal flag flew chez Alito, the justice bravely blamed his wife:
“I had no involvement whatsoever in the flying of the flag,” Justice Alito said in an emailed statement to The Times. “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”
I understand that one spouse is not necessarily responsible for the lapses in judgement of the other. But it is very important for a sitting SCOTUS justice to maintain the appearance of impartiality. As I’ve discussed before, unlike other courts (and other branches of government), the SCOTUS has no ethics code.
In the world of journalism, where the appearance of impartiality is also important, larger media outlets have formal ethics codes. To wit: New York Times reporter Trip Gabriel quotes his own employer and notes that the NYT has higher ethical standards than the highest court in the nation, though that’s not a high mountain to climb because — and I repeat — the highest court in the nation has no ethics code at all. In its place, there are some flaccid reporting requirements that both Thomas and Sotomayor ignored without consequence.
To be fair, Mrs. Alito’s apparent sympathy for the Stop The Steal movement and perhaps the January 6 rioters does not necessarily mean her husband shares those sentiments. So again, we are left with appearances. When I was a community journalist, if my wife had put a lawn sign in front of our house endorsing a candidate for office in our town, I would have asked her to take it down. Of course, my wife would never have done that in the first place because she understands better than Mrs. Alito the importance of journalists and judges appearing disinterested in the outcome of elections they cover and unbiased about the public-policy issues that might come before them.
The aforementioned Justice Thomas is in an even more perilous position than Alito regarding the Jan. 6 insurrection and decisions related to the disputed 2020 presidential election. His wife Ginny has been an outspoken activist on both matters, attending the Stop the Steal rally at The Ellipse before the riot and giving direct advice to Trump’s chief of staff on how to overturn the presidential election.
Sen. Dick Durbin, the Democrat who chairs the Senate Judiciary Committee, has called on both Alito and Thomas to recuse themselves from involvement in matters related to the 2020 election or the riot at the Capitol.
Right, that’ll happen whenever Chief Justice John Roberts pushes members of the high court to accept an actual ethics code, which is to say, never. Why will the justices do nothing? Because they can …
Over the transom …
This piece mostly concerns IVF, but as an adoptive parent, I found it extremely interesting. Depending on the program, some prospective adoptive parents are also permitted to express a gender preference.
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The Cowgills will soon be spending a lot of time in the Central Time Zone. And, like Rodney Dangerfield, we won’t “get no respect.”
America’s Worst Time Zone: Where the clocks are off in both directions -The Atlantic
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Whom should Trump pick as his running mate? The Wall Street Journal editorial board thinks he should NOT disregard Nikki Haley’s supporters:
Vice Presidents are rarely decisive in presidential elections, but they can matter for governing and the country’s future.
Yes, there are still Republicans who care about governing. The conservative WSJ eddy board isn’t always my cup of tea, but unlike too many Republicans in Congress, they actually have goals and policies they want to enact.
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I’ve heard people who live in Manhattan tell me, “Tomorrow, we’re going upstate.”
“Oh, anyplace fun?” I ask them.
“Katonah!”
Really? Katonah is in Westchester County. That strikes me as downstate. Some New Yorkers think upstate starts anywhere north of Yonkers. I always thought upstate began in Poughkeepsie or Newburgh. As you can see from clicking on this X (formerly Twitter) thread, no one can agree. There is even a hashtag #WhereIsUpstate.
I like journalist Jon Campbell’s boundaries the best:
Upstate New York = anything north of the George Washington Bridge.
Terry, the SCOTUS today is certainly maddening and even more so because the institution seems entirely uninterested in fixing any of the many scandals and failures to recuse (I'm talking to Mrs. Ginny Thomas's wife here, and now, with Justice Alito and the flag of distress). So what does the Constitution provide for corrective measures? If I remember my American History classes, there are two mechanisms. One is for Congress to pass laws that further define the practice and enforcement of Judicial Review. The other is to impeach specific Justices, as needed. And, frankly, this is clearly needed.
The problem is that not only is Congress polarized and fillibusted, but they are this way (at least in part) because of SCOTUS action, including the decision of Citizens' United. Senator Sheldon Whitehouse (D-RI) deserves all of our attention, especially in his work about SCOTUS. His 30-some part series of speeches from the Senate Floor, in aggregate titled "The Scheme," is must-watch TV (go CSPAN!).
Will any real action happen? I guess, in keeping with the TV imagery above, I'll go with the old standby: "Stay Tuned!"