Category: USSupremeCourt

The Supreme Court has gone rogue. Now is the time to start fixing it

Posted on by Joan McCarter

The conservative Supreme Court has gone rogue. It has “cemented its place in history as the most radical Supreme Court ever,” in the words of historian Kevin Kruse. It handcuffed all federal regulatory agencies last week, and elevated the president to king on Monday. They’ve done so on behalf of the American oligarchs who have bankrolled the lavish lifestyle of at least two of the justices. They have also done so on behalf of twice-impeached convicted felon Donald Trump.

If there is any hope of salvaging our republic out of this mess, President Joe Biden and Democrats have to fight back, immediately, in the campaign and in action. That means setting aside the trust institutionalists like Biden and Senate Judiciary Chair Dick Durbin have in the system and in the basic decency of people like Chief Justice John Roberts. It means directly taking on the corrupt court and making the case to the American people that it has to be stopped.

Biden made a start Monday evening, giving a short prime-time address to the nation to point out the “dangerous precedent” of placing “virtually no limits on what a president can do.”

“This decision,” Biden said, “has continued the court’s attack in recent years on a wide range of long-established legal principles in our nation, from gutting voting rights and civil rights to taking away a woman’s right to choose to today’s decision that undermines the rule of law of this nation.”

In perhaps the most chilling words a president has uttered since the Civil War, Biden starkly defined where we’re at as a nation. 

“[I]t will depend on the character of the men and women who hold that presidency that are going to define the limits of the power of the presidency,” he said, “because the law will no longer do it.” 

That’s Biden declaring that, as of Monday, we are no longer a nation under the rule of law because of a decision made by a court that is fundamentally corrupt—the essential backdrop to this momentously, historically awful term.

Start with Justice Clarence Thomas, whose corruption has been detailed in months of reporting from ProPublica: the undeclared luxury trips, gifts, and real estate deals; the cozying up to the Koch machine; his own extortion of the court and the oligarchs insisting that if he didn’t benefit financially, he would leave the court. There’s also his wife, Ginni, who not only plotted in Trump’s efforts to overturn the 2020 election, but was rewarded by another billionaire—Leonard Leo—who funneled tens of thousands to her for consulting work. 

Not to be outdone in either the grift or the partisanship game, there’s Justice Samuel Alito. He was there for the luxury trips from hedge fund billionaires and the lavish trip to Rome to be feted for writing the decision that overturned Roe v. Wade. Like Thomas, Alito lets his spouse do his partisanship talk for him, or rather the flag-flying.

Then there’s Roberts refusing to even answer questions from the Senate about how these bought-and-paid for ideologues have tarnished the institution or to consider implementing a binding ethics reform to attempt to redeem the court.

And voters know it. Trust in the court plummeted after it overturned Roe to record lows, and it is not recovering.

So here we are. The only thing that can forestall the end of the republic is our vote and the hope that democrats—and Democrats—prevail in November in numbers that can’t be denied. Maybe then elected Democrats will fix this mess.

There are plenty of good ideas for reshaping the court from expanding it to imposing term limits to create a stable of justices that rotate in and out of the court. The solutions are there—Democrats need to embrace them. And run on them.

That can start with rallying around Rep. Alexandria Ocasio-Cortez’s impeachment resolution against the justices who perpetrated this “assault on American democracy.” No, it won’t move forward in a Republican-controlled House, but it can help unite Democrats for an immediate course of action should they regain the House.

House Democratic Leader Hakeem Jeffries echoed that, saying Democrats plan to “engage in aggressive oversight and legislative activity” to determine that “extreme, far-right justices in the [Supreme Court] majority are brought into compliance with the Constitution.”

The Senate has to take the lead in the coming months, and it has to come from Durbin, who failed in his first task of responding to the devastating ruling. He complained over spilled milk, that Thomas and Alito “brazenly refused to recuse themselves from this case.” He scolded Roberts for not using “his existing authority to enact an enforceable code of conduct.”

It’s a lot too late for that. Durbin and his colleagues need to get on the same page as House Democrats, because they actually are in an oversight position and need to start using it. No, they can’t fix the Supreme Court now, but they can start building the case for it. 

They have to win back the two elected branches, and one of the best ways to do it will be to put aside the niceties of institutionalism and comity and declare war on the unelected branch—the one that would make Trump king.

In the aftermath of the Supreme Court's Bloody Monday, every single Democrat should be talking about that—exclusively that. Enough hand-wringing over Biden’s debate performance. Enough speculation about replacing the top of the ticket. Enough Democrats in disarray. Too much is at stake now.

Tell the people—show the people—the danger the republic is in. How Democrats react now to what this court has done could make all the difference in November.

If you want to help make America the place it ought to be, it starts by electing more and better Democrats. And you can do your part right here. Please give $10 to each of these Daily Kos-endorsed candidates today!

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The pressure is building for the Senate to do something about Alito

Posted on by Joan McCarter

Supreme Court Justice Samuel Alito’s insurrectionist flag flying was bad enough the first time around. The second instance demands action. Congress, Chief Justice John Roberts, and the third branch body that oversees the judiciary—the Judicial Conference—have to act, but it’s not going to happen unless the Senate Judiciary Committee raises some hell. 

The problem is the chair of that committee, who is also the No. 2 leader of the Senate Democrats, is dithering. Dick Durbin of Illinois, told reporters “I don't think there's much to be gained with a hearing at this point” when news broke that Alito flew an upside-down American flag at his home days after the violent insurrection of Jan. 6, 2021, as well as while the court was still considering whether to take up cases over the 2020 election.

“I think he should recuse himself from cases involving Trump and his administration,” Durbin continued.

After the second flag scandal, Durbin is still just calling for Alito’s recusal on cases the court is deciding right now: Donald Trump’s immunity in criminal cases in his efforts to overturn the 2020 election and on the prosecution of Jan. 6 riot participants. He’s still not sure whether his committee should investigate; He wants more time to think about it.

“Justice Alito is not taking care to avoid political identity,” he told The Washington Post. “He is identifying the right-wing elements in our political system. And that’s unfortunate. It’s further evidence of the need for him to recuse himself from cases that involve the Trump administration.”

“[Chief] Justice Roberts has to step back and realize the damage that’s being done to the reputation of the court,” Durbin added.

Roberts might realize that, but the chances that he’s going to do something about it are about as unlikely as Alito’s recusal.

Outside groups, including Indivisible and Demand Justice, as well as legal experts are pressuring Durbin to act by launching an investigation into Alito’s insurrectionist leanings. “Chief Justice Roberts must demand that Justices Thomas and Alito not be allowed to participate in deciding the immunity case or any other decision related to Jan. 6,” Norman Eisen, former impeachment counsel to the House Judiciary Committee, and Michael Podhorzer, senior fellow at the Center for American Progress, wrote this week for MSNBC.  

“And the Senate should hold hearings immediately investigating their conduct. Any other course risks the court’s legitimacy, Americans’ rights and the rule of law,” they concluded.

Durbin is facing pressure inside the Senate as well. Two Democrats on the Judiciary Committee, both nipping at Durbin’s heels to succeed him as chair, want more. Sen. Sheldon Whitehouse of Rhode Island told MSNBC’s Lawrence O'Donnell that what Alito is doing by refusing to recuse on these cases is breaking a "law passed by Congress, specifically applicable to Supreme Court Justices. When they pay no attention to it, they are actually violating statutory law."

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Whitehouse went on to say that “it has gotten to the point where the Chief Justice has to engage, and I think you will see more action on that shortly out of the Judiciary Committee.”

Sen. Richard Blumenthal of Connecticut told MSNBC’s Chris Hayes Tuesday that “Chief Justice Roberts ought to be summoned to a hearing before the Judiciary Committee of the Senate. He ought to show some leadership and be held accountable.”

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“Of course, Justice Alito ought to be subpoenaed as well in my view, but likely he is not going to appear and I think it is a time of reckoning for the Congress,” Blumenthal continued.

“Justice Alito says the Congress can't regulate, to use his term, the Supreme Court. But the Congress set salaries. It sets rules of procedure. It sets the numbers of justices. The founders didn't want the United States Supreme Court to be above the law.”

Alito famously declared himself and the rest of the justices just that in an interview with The Wall Street Journal last year, in which he made a startling assertion of constitutional power: “No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period.”

That interview was with David Rivkin Jr., a regular contributor to the WSJ who also happens to be a lawyer who was about to argue a major tax case before the court. Durbin once again called on Alito to recuse from that case, as well as on Roberts to do something about Alito, for all the good it did.

This is not so subtle pressure on Durbin to do more than tweet sternly worded statements from two of his senior committee members. They see what all of us see: Asking nicely for Alito to recuse—which Durbin and House Democrats have done—is weak sauce.

It’s time to act. House Democratic leadership should be talking impeachment instead of issuing empty demands to Alito. No, Speaker Mike Johnson won’t go along with it, but Democrats are a hair's breadth from having control of the House and they should act like it. They are also likely to take the House back in November, which gives an impeachment threat now more weight.

The Senate Judiciary, led by Durbin, has to investigate. They have to put maximum pressure on Roberts starting right now, before the court issues its rulings on Trump immunity. 

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We're heading across the pond for this week's episode of "The Downballot" after the UK just announced it would hold snap elections—on July 4, no less. Co-host David Beard gives us Yanks a full run-down, including how the elections will work, what the polls are predicting, and what Labour plans to do if it finally ends 14 years of Conservative rule. We also take detours into Scotland and Rwanda (believe it or not) and bear down on a small far-right party that could cost the Tories dearly.

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Clarence Thomas is the undisputed king of SCOTUS grift

Posted on by Joan McCarter

Supreme Court Justice Clarence Thomas is the gods’ gift to investigative reporters. The man has apparently not paid for a goddamned thing in his life since Ronald Reagan installed him in his first powerful government position. His grift goes so deep, according to a new report in from The Guardian, that his powerful network of former clerks had to pay for the privilege of attending his Christmas party.

According to Venmo records reviewed by The Guardian, several former clerks who are now powerful attorneys sent payments to Thomas’s aide, Rajan Vasisht, who was in the job from July 2019 to July 2021 for a 2019 Christmas bash with the justice. The amount of money each sent to Vasisht’s Venmo account wasn’t disclosed, “but the purpose of each payment is listed as either ‘Christmas party’, ‘Thomas Christmas Party’, ‘CT Christmas Party’ or ‘CT Xmas party’, in an apparent reference to the justice’s initials.” Given that Vasisht was Thomas’ aide, scheduling his personal and official calendar and handling his correspondence, there’s no other reason for these high-powered Washington, D.C., lawyers to be sending him money.

Among those who sent money is Patrick Strawbridge, a partner at Consovoy McCarthy, who just secured a big win at the Supreme Court representing the anti-affirmative action group Students for Fair Admissions in its suit against the University of North Carolina. He has also worked for the Trump Organization, the Trump family, and Donald Trump, including representing Trump in his failed bid to keep his tax returns from becoming public—his first oral argument before the court. He clerked for Thomas in 2008-2009.

The Consovoy in Stawbridge’s firm is Will Consovoy, who was a fellow Thomas clerk in the same term. Consovoy also worked for Trump, trying to shield his tax records from then-Manhattan District Attorney Cy Vance Jr. Consovoy was originally lead counsel in the case overturning affirmative action, but withdrew from oral arguments at the court when he was diagnosed with brain cancer. He died earlier this year.

Other former Thomas clerks who sent party money include:

Kate Todd, who served as White House deputy counsel under Donald Trump at the time of the payment and is now a managing party of Ellis George Cipollone’s law office; Elbert Lin, the former solicitor general of West Virginia who played a key role in a supreme court case that limited the Environmental Protection Agency’s ability to regulate greenhouse gas emissions; and Brian Schmalzbach, a partner at McGuire Woods who has argued multiple cases before the supreme court.

Most of Thomas’ former clerks have landed in extremely influential positions thanks to their association with Thomas, and of course the Federal Society that helped them get where they are now. A raft of them—about two dozen—ended up with Trump-appointed jobs, either in the administration or in the federal judiciary. In private practice, former Thomas clerks end up in the vast right-wing network of firms that help dark money groups manufacture court cases to do things like overturn decades of precedent in abortion protections, affirmative action, environmental regulation, etc. The Thomas alum are with firms that regularly go before the court and in judgeships on the lower courts, where they can help tee up cases to go to SCOTUS. It’s a right-wing judicial swamp.

Thomas has bragged about how he has the most diverse clerks from all backgrounds. “They are male, they are female, they are black, they’re white, they’re from the West, they’re from the South, they’re from public schools, they’re from public universities, they’re from poor families, they’re from sharecroppers, they’re from all over,” he said in 2017 while talking to students at the University of Florida Levin College of Law.

Thomas’ wife Ginni has also written about how the former clerks are like extended family and she’s the “den mother” to the group. She’s organized big reunions (which the clerks probably ended up paying for) and coordinated them all on Facebook. That ended up extending into soliciting their help with the insurrection, for which she had to apologize. Not that there weren’t insurrectionists in the group: John Eastman is among them. He’s facing potential disbarment in California for his part in the attempted coup, and because he has “repeatedly breached professional ethics.” It’s noteworthy Eastman’s “family” from his days clerking for Judge J. Michael Lutting in the mid-1990s included 2020 elector objector Ted Cruz, one of the only senators to back the 2020 scheme.

Whether the powerful, well-connected group of lawyers who paid for Thomas’ Christmas party breached those professional ethics is murky at this point. Kedric Payne, the general counsel and senior director of ethics at the Campaign Legal Center, told The Guardian that it is possible that this was simply a pay-your-own-way kind of Christmas party rather than them paying Thomas’ expenses. That would be different from a scheme of lawyers paying for access to a Supreme Court justice. “But the point remains that the public is owed an explanation so they don’t have to speculate.”

Yes, we are owed that explanation, and it’s not likely to be forthcoming. At the heart of this is Thomas’ unbounded propensity for grift, his never-ending grudge against everything, and his sense of entitlement—you see, he’s owed the lavish lifestyle his “friends” have provided him. If that includes making his extended “family” of clerks—more like a crime family—pay for the Christmas party he is hosting for them, so be it. He actually has a lot in common with Trump, doesn’t he?

This is precisely what the founders created impeachment for: Clarence Thomas. It is definitely time for Democrats to draw up those impeachment charges, even though it’s not going to happen. It can’t happen because Republicans are just as corrupt as he is. They aren’t going to let a little corruption between friends stand in the way of overturning progress case by case. But by keeping his scandals front and center, Democrats can make Republicans own him and his corruption.

The only solution to the problem of Thomas is a political one: Beat the Republicans and fix this. That means expanding the court to nullify his presence and ending lifetime appointments to the court so the likes of Thomas can’t happen again.

‘Red flags’ were raised over Clarence Thomas disclosures going back to 2011

Posted on by Joan McCarter

U.S. Supreme Court Justice Clarence Thomas has been thumbing his nose at his colleagues, the Senate, and the nation since at least 2011. Back then, watchdogs discovered he had not disclosed household income from his wife, Ginni Thomas—at least five years’ worth of income from her partisan political work the Heritage Foundation and the Tea Party astroturf group she founded. Thomas belatedly filed 20 years’ worth of amended disclosure forms, and then did not change his nondisclosing ways.

There aren’t many ethics rules Supreme Court justices have to observe, but there is a federal law they are bound by: the Ethics in Government Act of 1978. That law applies to the chief justice of the Supreme Court and all the associate justices, along with most other high-level government officials and employees and, in some cases, the spouses and dependent children of those officials, too. Thomas has not abided by that law and has not done so for years.

In 2012, U.S. District Judge Mark Wolf “raised red flags” over the review conducted under the auspices of the Judicial Conference of the United States, Bloomberg News reports based on newly disclosed information. Wolf “repeatedly expressed concern” that the committee assigned to investigate Thomas didn’t disclose its findings and actions to leaders of the conference, the federal judiciary’s policymaking body. The committee independently determined that Thomas had not “willfully” failed to comply, and that his omission of 20 years’ worth of household income in the hundreds of thousands of dollars was a “routine” matter.

Wolf raised enough hell about having been kept in the dark on the matter that the conference did adopt a small change: The committee that looks into disclosure problems has to report to the full conference about them. What the Judicial Conference—comprising the Supreme Court chief, the chiefs of all the judicial circuits, and a district judge from each regional circuit—decides to do with the information is up to them.

Since well before 2011, Thomas has been in the pocket of Texas billionaire Harlan Crow and failed to disclose everything from that relationship including expensive gifts, luxurious travel, profitable real estate deals, and private school tuition for the nephew he was raising as a son. Thomas kept on not disclosing, which is all the evidence needed to surmise that what the Judicial Conference headed up by Chief Justice John Roberts decided to do about it was nothing.

That’s not to say Thomas and pals learned nothing from the experience. His friend Leonard Leo, the Federalist Society founder and dark money maven who has reshaped the federal judiciary, learned that it was better to leave Ginni’s name off of payments for her extreme partisan work. “No mention of Ginni, of course,” Leo instructed when he was arranging for her payment through a third party. If her name isn’t on any of the paperwork, then what would her husband have to disclose?

It’s not just financial disclosures, by the way, where Thomas has failed in any semblance of ethical behavior. He never recused himself from any of the cases before the court that involved Ginni’s political activities. He has recused in other cases involving his son and his employers, so it’s not a matter of Thomas misunderstanding what’s supposed to be done. Thomas is holding himself above those requirements.

He’ll continue to do so as long as Roberts—along with the rest of the court—looks the other way. That’s exactly what Roberts intends to do. He made that clear via his refusal to even talk to Congress about ethics in the court. Because he can get away with it, Thomas will remain defiant, continue to decide cases he shouldn’t be active on, and will probably continue to enjoy the largesse Crow has on offer.

He won’t resign, and as long as the House is in Republican control (and Senate Minority Leader Mitch McConnell draws breath in the Senate) Thomas can’t be impeached, even while he’s a textbook case for impeachment.

Thomas and the whole court are declaring themselves above the law. The only recourse Democrats have in this situation is political. They’ve got to keep Thomas’ corruption—enabled by Republicans—in focus. Democrats must keep having hearings about court reform, they must keep investigating those gifts, and they must keep talking about how every extreme, unpopular partisan decision is brought to you by Republicans.

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Dimitri of WarTranslated has been doing the essential work of translating hours of Russian and Ukrainian video and audio during the invasion of Ukraine. He joins Markos and Kerry from London to talk about how he began this work by sifting through various sources. He is one of the only people translating information for English-speaking audiences. Dimitri’s followed the war since the beginning and has watched the evolution of the language and dispatches as the war has progressed.

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Don’t let Mitch McConnell win. Don’t let him destroy democracy

Posted on (Updated by Joan McCarter

It’s hard to argue that there’s just one person responsible for the Republican Party having gone entirely off the rails of democracy. It’s been in process for decades, after all, arguably predating Richard Nixon’s resignation but definitely fueled by that in the past half-century. But if you want to find the person most responsible for using and abusing the levers of the systems the founders put in place to undermine democratic rule, look no further than Senate Minority Leader Mitch McConnell.

His handiwork has reduced the Senate to the massive roadblock to progress that it is today. He was the first lawmaker to decide that something as once unimaginable as threatening to breach the debt ceiling could be used as a bargaining chip. He has made the filibuster business as usual for the Senate, forcing every single piece of regular legislation—however uncontroversial—to go through the arduous process of multiple procedural votes just to be considered on the floor. He refused to do one of the most sacred duties of the Senate—seating a U.S. Supreme Court justice—because he could.

The outgrowth of his brazen dismantling of norms is seen in what’s been happening in Wisconsin for the last several years, where a number of appointees of the former Republican governor, Scott Walker, are simply refusing to recognize Democratic Gov. Tony Evers and are refusing to step down, months after their terms have expired.

Vote Forward has an ambitious goal of sending 10 million letters in October to Democratic-leaning voters in the swing states. You can write these on your own time, in the privacy of your home. Click here to sign up or log into your Vote Forward account.

Mary Williams’ term on the Technical College System Board expired in May 2021 and Evers named her replacement. But the former Republican state representative refuses to leave. So do two other members appointed by Walker: Kelly Tourdot and Becky Levzow. Asked about it, Williams said, “All you have to do is see what the Supreme Court did.” When asked why she is squatting in the job when others have left, she answered, “Because everyone’s an individual. Now I’m going to hang up, and I don’t want you to call me again.”

She, and a number of other Republican appointees on her board and others, are taking the route of Frederick Prehn, who has remained on the state’s Natural Resources Board—at the urging of Walker—despite the fact that his replacement was named months ago. He’s sticking because the state Supreme Court’s conservative majority said he could. Sound familiar?

The court ruled that sitting members can stay on these boards until their successors have been approved by the state Senate. Which is controlled by Republicans. There are 164 Evers nominees who have not received Senate votes. Republicans, who assume they will hold the Senate, have been holding off on these 164 nominees on the assumption that they will keep the Senate and that Republican candidate for Gov. Tim Michel will win in November. At which point all of those nominations would be withdrawn.

It sounds very familiar, doesn’t it.

“There’s two different things going on here,” Miriam Seifter, an associate professor of law at the University of Wisconsin-Madison and co-director of the State Democracy Research Initiative told the Milwaukee Journal Sentinel. “One is the situation where individuals assert the power to stay in office after the term has expired. The other is the Senate refusing to confirm appointees. If either of those things happen in isolation or rarely, neither one is democracy-altering. If these happen systematically and across the board … you would start to see the constraints of gubernatorial power.”

And you see the erosion of democracy, where the will of the people, the voters, is ignored. “Gov. Evers appointed highly qualified, dedicated Wisconsinites for the (Technical College System) and DNR Boards, and Republicans’ continued efforts to prevent basic, fundamental functions of our democracy is radical partisanship at its most dangerous,” said Evers spokesperson Britt Cudaback.

It’s the McConnell playbook in action, and a cautionary tale for 2022. There’s little reason to believe that Republicans in any state in which they gain majorities and take governors seats—and state supreme courts—won’t do the same. There’s little reason to believe they wouldn’t take the next step and do everything they could to make sure that Donald Trump was installed as president again in 2024.

For that matter, there’s little indication to believe McConnell would really fight that eventuality, for all the attacks he’s endured from Trump. When he had the chance to cut off Trump’s path back to the White House with an impeachment conviction, he voted no. He urged his conference to vote no. He would do it again.

This is it. This is the election to stop Wisconsin extremism from infecting more states; to stop McConnell from taking the nation to that level with a Senate majority; to stop the House from going to Republicans who would threaten everything.

That’s why Daily Kos has engaged both broadly and deeply this cycle, with candidate slates at every level. You can learn more about all those endorsements here, and determine if there’s a slate—or even an individual candidate—that speaks to you, your volunteer time, your dollars.

It doesn’t matter how much you give, it matters that you do, and that you engage and help us defeat the fascists.

If you’d like to donate to every single candidate and ballot measure organization Daily Kos has endorsed this year all at once, just click here.

On this week's episode of The Downballot we get medieval on the traditional media for its appalling display of ableism in the wake of John Fetterman's recent NBC interview; recap the absolutely wild goings-on in Los Angeles, where City Council President Nury Martinez just resigned after a racist tirade was caught on tape; dive into the unexpectedly close race for governor in Oklahoma; and highlight a brand-new database from Daily Kos Elections showing how media markets and congressional districts overlap.

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Report of investigation into leaked draft of abortion decision is coming, Gorsuch says

Posted on (Updated by Joan McCarter

U.S. Supreme Court Justice Neil Gorsuch said Thursday that the investigation into the leak of the draft opinion in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade, is still continuing and that investigators will issue a report of those findings, but he made no promises that the results will be made public.

Speaking at the 10th Circuit Bench and Bar Conference in Colorado Springs, Gorsuch said that the “internal committee to oversee the investigation” appointed by Chief Justice John Roberts “has been busy, and we’re looking forward to their report, I hope soon.” How soon he would not say, nor would he say if that report would be seen by anyone outside of the Court. The conference organizers barred reporters from questioning Gorsuch or other judges participating.

Gorsuch continued, saying, “Improper efforts to influence judicial decision-making, from whatever side, are a threat.” Yes, from whatever side. “They inhibit our capacity to communicate with one another,” he said, chilling the communication between opposing justices, which “improves our final products,” he said. “I very much hope we get to the bottom of this sooner or later.”

Justice Samuel Alito’s anachronistic screed against abortion was leaked in early May of this year, weeks ahead of the final opinion. It showed precious little input from any dissenting justice, and was virtually identical to the final opinion. It’s not out of the realm of possibility that in the weeks between the leak and the decision, there might have been alterations inspired by one of the three liberals. In another universe, with another set of extremist justices and someone who is not Alito.

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Given all we’ve seen from the Court’s extremist, Trump-packed majority, it seems likelier than not that if the investigation determines the leak came from their camp, that report will never see the light of day. That’s how they like to do things, after all. Look at all the radical and democracy-breaking decisions they issued from the shadow docket, without holding any hearings, with no transparency, and in unsigned decisions consisting of one or two sentences.

But if the leak came from the minority—a clerk, a justice—or from support staff—a janitor—we’re a lot more likely to hear about it.

All we know about the investigation is that it heightened already existing tensions in the Court, according to long-time court reporter Nina Totenberg at NPR. Terrified clerks considered getting lawyers, after the court asked them to sign affidavits and open up their cellphones to the investigators. They were in a no-win situation. Assert their right to get a lawyer and not turn over their phone, and they would immediately be under suspicion, a potentially career-ending situation.

On the other hand, the justices themselves are basically untouchable. No one can demand of them that they turn over cellphones or even cooperate with investigators. If one of the justices was responsible for the leak, we will probably never know.

There’s no code of ethics governing the Supreme Court, and the only remedy for dealing with a rogue justice is impeachment. Impeachment, or court reform and expansion. It’s long past time that Congress applied the same code of conduct to the Supreme Court as to every other federal judge.

It’s also time to impose other reforms, including court expansion, to make correct the horrific imbalance Trump and Mitch McConnell created with their court packing.

The Supreme Court is now in the middle of the Jan. 6 insurrection. Congress needs to respond

Posted on (Updated by Joan McCarter

The Jan. 6 committee is reportedly preparing to call Supreme Court spouse Ginni Thomas to talk about just how deeply involved she was in the effort to help Donald Trump have a coup. Thomas told the Daily Caller, “I look forward to talking to them,” and that she wants to “clear up misconceptions.” Okay then.

The committee now says she’s going to get that opportunity. That’s one step closer to Congress taking seriously the threat that Thomas and her spouse, U.S. Supreme Court Justice Clarence Thomas, pose to the republic.

A report in The New York Times Thursday combined with The Washington Post story put Ginni Thomas in the thick of John Eastman’s coup-plotting. There are emails between the two. There’s Eastman telling a pro-Trump lawyer and Trump campaign officials that he was aware of a “heated fight” within the Supreme Court: “For those willing to do their duty, we should help them by giving them a Wisconsin cert petition to add into the mix.”

RELATED STORY:  Trump attorneys claimed Supreme Court justices were considering joining scheme to overturn election

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Now, that could be Eastman lying about the situation in order to keep the team fighting for Trump or from some other reason—that’s law professor Steve Vladek’s interpretation. Or it could have been Ginni working Eastman up with tales from the inside to keep him happy.

Regardless, it is the spouse of a sitting Supreme Court justice in the thick of a coup attempt. We don’t know where Clarence Thomas is in all this. We do know that he was the lone justice who wanted to keep the White House records around Jan. 6 away from the committee. Maybe now we have new information as to why he wanted that.

What we also know now, thanks to Thursday’s Jan. 6 committee hearing, is that Eastman (who was a Thomas clerk back in the day) knew that what he was promoting was illegal and told Trump so on Jan. 4, two days before the insurrection.

Eastman knew what he was pushing—with help from Ginni Thomas—was illegal. Following that to its logical conclusion, with the revelations of the last 24 hours, how does the committee not subpoena Ginni Thomas?

Furthermore, how do President Joe Biden, House Speaker Nancy Pelosi, and Senate Majority Leader Chuck Schumer not demand that Clarence Thomas resign? How do the House and Senate Judiciary Committees not turn their attention to Clarence Thomas and investigating just what Clarence and Ginni Thomas were cooking up together?

Here’s what retired federal judge J. Michael Luttig, a true conservative hero who was on George W. Bush’s short list for the Supreme Court, said: ”Donald Trump and his allies and supporters are a clear and present danger to American democracy. [...] I don’t speak those words lightly.”

Those allies and supporters include Supreme Court Clarence Thomas. The danger is coming from the highest court in the land and Congress has to deal with that. It’s time to begin the investigations leading to an impeachment of Clarence Thomas. No, this Senate would not convict with 50 Republicans, but after the work of the Jan. 6 committee and all of these revelations, they need to be forced to vote to protect him. They need to be making the case against Clarence Thomas, and then they need to start real work of reforming and expanding the Supreme Court.

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2020 was an election theft dry run for Republicans. Next time, they could succeed

Posted on by Joan McCarter

Every election starting now and into the foreseeable future is going to be the most important election of our lifetime. Until the Republican Party as we currently know it is ground to dust, scorched, and the earth on which it stands is salted, the threat of white nationalistic fascism will remain. Right now, in 2022, Republicans are running explicitly on undermining representative democracy, from the smallest local positions up through the state legislatures and all the way to Congress. They are converging behind the Big Lie and promising that they are going to fix it so that they don’t lose any more elections. So that Donald Trump (or his stand-in) will take the 2024 election.

They’re not even trying to be subtle about it—it’s explicit in so many campaigns for governor, attorney general, and secretary of state in plenty of battlegrounds, including the states that Trump tried to contest in 2020.

“What we’re seeing right now is unprecedented,” Joanna Lydgate, co-founder and CEO of States United Action, told CNN’s Rod Brownstein. “To see candidates running on a platform of lies and conspiracy theories about our elections as a campaign position, to see a former President getting involved in endorsing in down-ballot races at the primary level, and certainly to see this kind of systemic attacks on our elections, this spreading of disinformation about our elections—we’ve never seen anything like this before as a country.”

RELATED STORY: Republican state legislators are laying the groundwork to overturn the next election

Brownstein reports on a study released last week—commissioned by the groups States United Democracy Center, Protect Democracy, and Law Forward—which determined that 13 states have already approved laws to make sure there will be partisan control over election administration, laws to intimidate election administrators, and laws requiring audits of the 2020 election, as if that is a thing. That’s beyond the orgy they’ve been having for the past decade with voter suppression laws, which hasn’t ended either. Thirty-three states have another 229 bills related to denying the results of the last election, and to limiting the electorate and predetermining the outcome of future elections.

“Taken separately, each of these bills would chip away at the system of free and fair elections that Americans have sustained, and worked to improve, for generations,” the groups concluded. “Taken together, they could lead to an election in which the voters’ choices are disregarded and the election sabotaged.”

“In the leadup to the 2020 election, those who warned of a potential crisis were dismissed as alarmists by far too many Americans who should have seen the writing on the wall,” Jessica Marsden, counsel at Protect Democracy, told Brownstein in an email. “Almost two years later, after an attempted coup and a violent insurrection on our Capitol, election conspiracy theorists—including those who actually participated in January 6—are being nominated by the GOP to hold the most consequential offices for overseeing the 2024 election.”

“It’s all connected,” Lydgate said. “The playbook is to try to change the rules and change the referees, so you can change the results.”

They’ve got a very powerful referee on their side in the form of Supreme Court Justice Clarence Thomas.

A casual observer might reasonably conclude that Ginni and Clarence Thomas are working in tandem to lay the groundwork for the next coup—with Ginni taking up the politics and Clarence handling the legal side. The symmetry between their work is remarkable. https://t.co/wUh5TiHk4q pic.twitter.com/tooRedMQJk

— Mark Joseph Stern (@mjs_DC) May 23, 2022

Thomas won’t recuse himself from any of these cases, and as of now, a Democratic Congress doesn’t seem particularly interested in trying to force him to via the threat of investigation and impeachment.

“What’s past is prologue, and what was done sloppily in 2020 is being mapped out by experts for 2024,” Slate’s Stern and Dahlia Lithwick write. “It didn’t work in 2020 because the legal and political structures to support it weren’t in place at the time. Those pieces are being put into place as we type this.” That’s the story Brownstein is also trying to get to Democrats and the rest of the traditional media—anyone who will listen and can do something about it.

There are answers. There are ways to fix this. They start with electing enough Democrats to state offices to make sure the damage the fascists can do is limited. We can also elect enough Democrats to the House and to the Senate to make the two Republican-friendly, obstructionist Democratic senators irrelevant.

Then it’ll be a matter of convincing that Democratic majority and a Democratic president that none of this is blogger hysteria, but a very real threat to our freedoms that has everybody else’s hair on fire. Saving our representative democracy means expanding and reforming the court.

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Clarence and Ginni Thomas take center stage at House hearing on Supreme Court ethics

Posted on by Joan McCarter

The federal judiciary is on tap for the House Wednesday—specifically, the topic of reforming the federal judiciary. The House has a raft of suspension bills (legislation that doesn’t require the regular rules process on the floor) it will run through, including the bipartisan Courthouse Ethics and Transparency Act, which the Senate already passed in February. While that’s happening, the Judiciary Committee’s Subcommittee on Courts will hold a hearing on Supreme Court ethics, or lack thereof.

That’s the juicy part of the day, with lawmakers spurred on by the disclosure of Ginni Thomas’ text messages showing the depth of her involvement in trying to promote a coup. As the spouse of a wildly partisan political activist, Supreme Court Justice Clarence Thomas at the very least should have recused from any cases related to the 2020 election and Donald Trump. Which of course he did not. This hearing will examine the lack of Supreme Court ethics and Congress’ role in dealing with that, including impeachment.

A memo obtained by The Hill from subcommittee chair Rep. Hank Johnson (D-GA) and sent to members ahead of the hearing outlines the existing codes of conduct that apply to other federal judges and summarizes legislative proposals that would extend the code to Supreme Court justices. As of right now, they’re exempt from it and are expected to discipline themselves—which, in Thomas’ case, doesn’t happen. The memo also outlines Congress’ impeachment authority as one of the tools at their disposal.

“Threats or inquiries of impeachment as a means of regulating the conduct of Supreme Court justices have had varying effects,” the memo said. Just one justice in the nation’s history has been impeached by the House, Samuel Chase in 1804. He was not convicted by the Senate. In 1969, Justice Abe Fortas resigned over an impeachment threat. The current crop of Republican justices pretty much thumb their nose at the idea of ethics, in contrast to the newest justice-designate, Ketanji Brown Jackson, who has preemptively recused herself from an affirmative action case before she’s even been officially seated on the court.

Markos and Kerry talk Ukraine and speak with Wisconsin Democratic Party chair Ben Wikler on how hitting back at Republicans helps win elections

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The memo makes it clear that this hearing is about the Thomases and the increasing calls for action  “following the reporting about text messages between the spouse of an associate justice and the then-White House Chief of Staff.”

“The Supreme Court has long operated as though it were above the law. But, Justice Clarence Thomas’ refusal to recuse himself from cases surrounding January 6th, despite his wife’s involvement, raises serious ethical—and legal—alarm bells,” vice chair of the subcommittee Rep. Mondaire Jones (D-NY), said ahead of the hearing. “The need for strong, enforceable ethics laws is clearer than ever. We have to do more to hold the Court accountable and restore public trust through a binding code of ethics and recusal.”

“Recent reports that the text messages of a justice’s spouse urging the overturning of a free and fair election may have been at issue in a case in front the Supreme Court—but that the justice did not recuse himself from the case—is just the latest and particularly egregious example in an unfortunately long list of illustrations as to why Supreme Court justices need to follow a formal code of ethics,” Johnson told The Hill. “I have been calling for this sort of reform for years, and I am encouraged to see a large, bipartisan majority of the public in favor of this long overdue legislation.”

Republicans, and particularly Senate Republicans, are unlikely to agree because it’s their justices behaving badly. It is, however, important for Democrats to keep pushing that point and to keep up the drumbeat for reform. The threat of some kind of action from Congress—a SCOTUS code of ethics, court expansion, impeachment—is at this point the only leverage that exists against the rogue Supreme Court majority.

The legislation they will pass Wednesday (a slightly different version passed 422-4 in December) will help some toward that effort. It also demonstrates that even the most hardcore partisan Republicans—in this case the bill’s sponsor, Sen. John Cornyn—recognize that there has to be at least the gloss of accountability for the Supreme Court. The bill toughens financial disclosure requirements for federal judges, including Supreme Court justices. They will have to make financial holdings and stock trades publicly available online, in the interest of disclosing conflicts of interest that would warrant judges recusing themselves from related cases.

As it currently stands, the parties involved in a case can request to see the judge’s financial disclosures, as can members of the public, but the judges themselves get to decide how much information they release and when. They have sole discretion in redacting information and can take all the time they want to fulfill requests.

The legislation is a result of a report last fall in the Wall Street Journal that found more than 130 judges broke the law by hearing cases in which they had a financial interest instead of recusing themselves. The Journal found 685 lawsuits that were decided by judges with a financial stake, with the potential fallout of hundreds of cases being overruled.

When the Journal alerted the judges to these violations, “56 of the judges […] directed court clerks to notify parties in 329 lawsuits that they should have recused themselves. That means new judges might be assigned, potentially upending rulings.” Most of the judges gave lame excuses or played dumb. “I had no idea that I had an interest in any of these companies in what was a most modest retirement account,” said Judge Timothy Batten Sr. of the U.S. District Court for the Northern District of Georgia, who owned JPMorgan Chase stock and ruled favorably for the bank in several cases.

Under this legislation, everyone in the judiciary branch will have to follow disclosure requirements like those that apply to lawmakers, reporting within 45 days all stock trades of more than $1,000. The Administrative Office of the U.S. Courts will have to create an online database, searchable and publicly accessible, of judicial financial disclosure forms and will have to get those forms into the database within 90 days from when they’re filed. The new law will apply to Supreme Court justices as well as federal appellate, district court, bankruptcy, and magistrate judges. The database has to be online within six months of President Joe Biden signing the bill.

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The Supreme Court can’t be untouchable. Congress needs to investigate Thomas

Posted on (Updated by Joan McCarter

The Washington Post’s Paul Waldman is absolutely right: “The controversy over Virginia ‘Ginni’ Thomas, Clarence Thomas, and the Jan. 6 insurrection is demonstrating one profound difference between Democrats and Republicans: how they view the value of making a stink.”

Three years on, the ridiculous and entirely made-up Hunter Biden story is still a thing, more a thing than Donald Trump extorting Ukrainian President Volodymyr Zelenskyy to try to get “dirt” on Biden. Because Republicans keep feeding it—because they know it will work.

Meanwhile, the spouse of a sitting U.S. Supreme Court justice was involved up to her eyebrows in the effort to overthrow the Congress and keep Donald Trump in office. The Donald Trump who was doing Vladimir Putin’s bidding in trying to withhold arms from Ukraine. Arms that Ukraine has desperately needed in its defense against Russia. That’s a pretty big thing! All definitely worth making a stink about. But thus far, Democratic leadership in Congress is not. The most they’ve done so far is say they think Thomas should recuse himself from any Jan. 6-related cases. Ineffectively.

That’s why Daily Kos and 16 other organizations have signed on to this Take Back the Court letter, demanding that Congress open a formal investigation into Clarence Thomas’ misconduct. We’ve written to Sen. Dick Durbin (D-IL) and Rep. Jerry Nadler (D-NY), the chairs of the Senate and House Judiciary Committees, “to request that the House and Senate Judiciary Committees open a formal investigation into Associate Supreme Court Justice Clarence Thomas’ misconduct in his handling of cases regarding the January 6 insurrection, the 2020 presidential election, and other cases involving his wife’s political activities.”

“Justice Thomas’ unethical conduct from the bench is within the purview of the House and Senate Judiciary Committees, and we urge the committees to investigate that conduct fully, in cooperation with the January 6 Select Committee as needed,” the groups write.

Even though Supreme Court justices have chosen not to abide by the same code of ethics that other all federal judges must adhere to, they are bound by a federal statute that bars them from hearing cases in which their “impartiality might reasonably be questioned,” or in which their spouse has “an interest that could be substantially affected by the outcome of the proceeding.”

Thomas has already violated that statute. He’s ruled in multiple cases surrounding the 2020 election and the insurrection—including being the lone dissenting vote requiring Trump to provide records to the Jan. 6 committee, records that may very well include communications from Ginni Thomas. “Justice Thomas clearly violated this provision when he refused to recuse himself from a case directly implicating his wife’s activities in support of the January 6 insurrection, and it is incumbent on Congress to respond,” the groups write.

Thomas’ rulings on cases in which his wife was directly involved go back at least two decades. In December 2000, the court heard Bush v. Gore, the only time in history in which the Supreme Court selected a president. While the case was pending, Ginni Thomas was collecting résumés for potential Bush administration positions. Twelve years later, he heard the challenge against the Affordable Care Act, NFIB v. Sibelius. Ginni was then heading up a group called Liberty Central, which was agitating for the law to be declared unconstitutional. Back then, a group of 74 members of Congress asked Thomas to recuse from the case. He did not. He heard the case and voted in dissent when the court upheld the law.

So we know how polite requests for recusal are going to pan out. Thomas is not going to recuse out of any sense of propriety or ethics. That’s abundantly clear. There’s only one way it happens and that would require a formal investigation.

It’s not just his refusal to recuse from cases, either, that raises ethics concerns aboutThomas. “Justice Thomas has repeatedly failed to disclose employers who paid his wife hundreds of thousands of dollars, as required by the Ethics in Government Act of 1978,” Take Back the Court points out. “This raises serious questions about what, if anything, Justice Thomas is trying to hide, whether any other undisclosed payments exist, and what possible judicial outcomes such hidden details relate to.”

“Allowing Justice Thomas to avoid scrutiny will surely cause the American people’s faith in our judicial system to deteriorate further—perhaps beyond repair. Americans know that Justice Thomas cannot act impartially in cases related to his wife’s political activities,” the groups write. “It’s up to your committees to ensure that he is held accountable for abusing his power and pretending otherwise.”

Nothing is going to happen to Thomas without Democrats kicking up a stink. An investigation into Thomas will sure stink for the Supreme Court, and for Chief Justice John Roberts, who seems to care about his legacy as much as anything else. Yes, it needs to happen.

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