Senate Republican Leader Mitch McConnell, that self-appointed guardian of a scandal-ridden Supreme Court he helped foist upon an unsuspecting nation, is growing increasingly miffed — in a way only he can — over the suggestion that the justices might want to get their ethical house in order.
McConnell is dismissive of the idea that Congress may have to step in and impose rules holding the court to some, if not particularly high, standards, given the Wild West manner in which the justices currently operate. He even took to the Senate floor on June 5 to admonish Democratic lawmakers who suggested Justice Samuel Alito, the court’s legatee to the likes of Roger Taney, and Justice Clarence Thomas, perhaps the biggest joke to ever sit on the vaunted bench, probably ought not participate in some upcoming cases because of their involvement in highly suspect, and widely publicized, blunders.
“Three of our colleagues have taken it upon themselves to write to the Chief Justice (John Roberts) and demand Justice Alito’s recusal in cases,’’ McConnell huffed and puffed. “One went so far as to tell the Chief that he should strip Justices Alito and Thomas of their ability to write majority opinions unless they recuse from the cases liberals don’t want them hearing.
“This goes beyond the standard disgraceful bullying my Democratic colleagues have perfected,” he said.
McConnell’s sensitivity to any criticism imposed on the high court, and the entire federal judicial system for that matter, is perfectly understandable. The whole magilla is his Frankenstein’s monster, using devious and underhanded tactics to pack the high court with hand-picked nabobs who, after pledging fidelity to judicial precedent before the Senate Judiciary Committee, immediately went about the task of overturning those earlier court decisions they didn’t much care for – see Roe v. Wade.
It was McConnell who led the way to place three obvious liars – justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — on the bench and, still not satisfied with the mess he created, plumbed the depths of the Federalist Society to populate the federal judiciary with just about every right-wing crazy imaginable. During President Obama’s term in office, McConnell blocked 73 nominations to the federal bench, providing his successor, former President Donald J. Trump, additional opportunities to degrade the court system he allegedly adores.
In the words of Dahlia Lithwick, who writes on the court for Slate magazine, McConnell “is the person who singlehandedly did more to destroy Senate norms of comity and respect, to help Donald Trump evade accountability, and to steal and pack the Supreme Court with people who should not be sitting on the court.”
Frankly, McConnell’s finagling hasn’t turned out so well, at least in the eyes of the public. A polling average produced by Fivethirtyeight.com showed that 55.1 percent of those surveyed had a negative view of the Supreme Court while only 34.6 percent approved, a margin of -20.5 percent.
By means of comparison, you’ve heard plenty about President Biden’s unpopularity? Well, Fivethirtyeight.com, using the same methodology, has his approval at 38 percent – more than three points higher than the status of the Supreme Court.
Americans actually had a slightly positive view of the court, according to Fivethirtyeight.com, until right around May 6, 2022. That dip occurred just a few days after the Dobbs decision, overturning Roe, which established a women’s right to abortion, was prematurely leaked to the public. The court reclaimed a more popular view for a short period thereafter but nosedived yet again beginning around May 2023, shortly after it was revealed that Thomas had received millions of dollars in free perks from friendly benefactors.
The court’s image has suffered since. The biggest headaches over the past two years have been Alito and Thomas, with Robert’s inability to bring them to heel following close behind.
Thomas, the senior member who is not and never has been highly regarded for his work on the court, has used his position as a cash cow, hiding just how much money he has received in so-called “gifts’’ over the years despite financial disclosure regulations. He has essentially used a gentleman named Harlan Crow, a Dallas-based real estate speculator, as his own personal ATM for more than 20 years.
Earlier this month, Fix the Court, a group that advocates for change in the federal judicial system, issued an analysis showing that Thomas received an estimated $4,042,286, or 193 “gifts,’’ since 2004. Of the 193, Thomas initially reported only 27 of the gifts on his financial disclosure forms.
“Supreme Court justices should not be accepting gifts, let alone the hundreds of freebies worth millions of dollars they’ve received over the years,’’ said Gabe Roth of Fix the Court. “Public servants who make four times the median local salary, and who can make millions writing books on any topic they like, can afford to pay for their own vacations, vehicles, hunting excursions, and club memberships — to say nothing of the influence the gift-givers are buying with their ‘generosity.’ The ethics crisis at the Court won’t begin to abate until justices adopt stricter gift acceptance rules.”
After the Fix the Court disclosure, Thomas filed an amendment to his financial disclosure report for 2019, which included food and lodging at a hotel in Bali and a private club in California from Harlan Crow.
There also has been concern about Thomas sitting on cases regarding participants in the Jan. 6, 2021 insurrection at the Capitol, given that his wife, Ginini, a far right activist, may have had some involvement in the entire rigmarole.
Alito is another trouble spot. He had his own gift controversy as reported by Pro Publica – taking a fishing trip with hedge fund billionaire Paul Singer picking up the tab and then failing to recuse himself in cases where Singer had some involvement. There also is the weird flag incidents – an American flag flew upside down at his Alexandia, Virginia, residence, a symbol used by the Jan. 6 insurrectionists during the Capitol onslaught. Then there was the so-called Pine Tree flag flown at his summer residence in New Jersey, a Christian nationalist emblem also used by the Jan. 6 gang.
In both instances, Alito used the old “my wife did it’’ dodge, the grownup’s excuse similar to an eighth grader’s “the dog ate my homework.’’ Alito is also, and this has nothing to do with his ability to sit on cases, a snide jerk. And he’s a Phillies fan, which makes matters even worse.
Roberts, who is not a strong Chief Justice, has done nothing to quell legitimate concerns. The court adopted an ethics code for the first time last November. As you may have guessed, it’s rather tepid, buttressing already extant disclosure rules, and suggesting that the justices might want to lay off cases where family is involved.
Senate Democrats, sensing that maybe stronger initiatives are required, offered a measure that would require the high court to establish a publicly-available ethics code and establish a manner in which complaints can be lodged against justices for possible violations. Such probes would then be considered by a review panel.
Sen. Dick Durbin (D-IL), chair of the Senate Judiciary Committee, sought to bring it to the floor this week. As expected, it was blocked by Republicans.
McConnell maintains Congress has no business meddling in Supreme Court affairs, raising disputed questions of constitutionality and essentially granting members of the nonet immunity from any skullduggery.
“The legal profession is in distress,” McConnell acknowledged in his floor speech, refusing to specifically cite the ills of the court itself. “Unethical behavior by attorneys serving political causes, unfortunately, knows no party or faction. It is up to the legal profession to police itself, and in the end, this means that courts, including the Supreme Court, must police their officers. We don’t need to appeal to heaven to fix this problem, just to the Supreme Court’s power to police the ethical practice of law among the members of its bar.’’
First Mitch goes to bat for Trump and now a Supreme Court with Alito and Thomas.
He sure knows how to pick ‘em.
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Written by Bill Straub, a member of the Kentucky Journalism Hall of Fame. Cross-posted from the NKY Tribune.
