Cory DoctorowNov 17, 2023

In April, Propublica's by Joshua Kaplan, @justinelliott and #AlexMierjeski dropped a *bombshell*: #SupremeCourt Justice #ClarenceThomas had been showered in high-ticket "gifts" by billionaire ideologue #HarlanCrow, who subsequently benefited from Thomas's rulings in the court:

https://www.propublica.org/article/clarence-thomas-scotus-undisclosed-luxury-travel-gifts-crow

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If you'd like an essay-formatted version of this thread to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2023/11/17/red-team-black-robes/#security-theater

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Clarence Thomas and the Billionaire

Island-hopping on a superyacht. Private jet rides around the world. The undisclosed gifts to Thomas have no known precedent in the modern history of the Supreme Court. “It’s incomprehensible to me that someone would do this,” says one former judge.

ProPublica
Show threadCory DoctorowNov 17, 2023

This was just the beginning: in the coming days and weeks, more and more of Thomas's corruption came to light, everything from the fact that his mother's home had been bought by Crow, to the fact that Thomas's adoptive son went to a fancy private school on Crow's dime:

https://www.propublica.org/article/clarence-thomas-harlan-crow-private-school-tuition-scotus

The news was explosive and not merely because of the corruption it revealed in the country's highest court.

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Clarence Thomas Had a Child in Private School. Harlan Crow Paid the Tuition.

Crow paid for private school for a relative Thomas said he was raising “as a son.” “This is way outside the norm,” said a former White House ethics lawyer.

ProPublica
Show threadCory Doctorow

The credibility of the court itself was at its lowest ebb in living memory, thanks to the two judges who occupied stolen seats - #Kavanaugh and #ConeyBarrett. One of those judges - Kavanaugh - is a credibly accused rapist. Thomas is also a credibly accused sexual abuser:

https://www.politico.com/news/magazine/2021/10/01/30-years-after-her-testimony-anita-hill-still-wants-something-from-joe-biden-514884

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30 Years After Her Testimony, Anita Hill Still Wants Something From Joe Biden

When Anita Hill testified about sexual harassment three decades ago, the Senate was skeptical. Now, she has ideas for systemic change.

POLITICO
Nov 17, 2023 at 6:33pmWeb
Show threadCory DoctorowNov 17, 2023

Then, this illegitimate court went on to deliver a string of upsets to long-settled law, culminating in the #Dobbs decision, which triggered state laws that force small children to bear their rapists' babies:

https://www.nytimes.com/2022/06/09/health/abortion-bans-rape-incest.html

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The New Abortion Bans: Almost No Exceptions for Rape, Incest or Health

Most of the state abortion prohibitions that would go into effect if Roe v. Wade is overturned do not contain carve-outs that were once widely supported by abortion opponents.

The New York Times
Show threadCory DoctorowNov 17, 2023

*That* was the context for the Thomas bribery scandal, which was swiftly joined by another bribery scandal, involving #SamuelAlito's improper acceptance of valuable gifts from Paul Singer, another billionaire who brought business before the court:

https://www.propublica.org/article/samuel-alito-luxury-fishing-trip-paul-singer-scotus-supreme-court

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Justice Samuel Alito Took Luxury Fishing Vacation With GOP Billionaire Who Later Had Cases Before the Court

In the years after the undisclosed trip to Alaska, Republican megadonor Paul Singer’s hedge fund has repeatedly had business before the Supreme Court. Alito has never recused himself.

ProPublica
Show threadCory DoctorowNov 17, 2023

This string of scandals and outrages naturally prompted public curiosity about the Supreme Court's ethical standards, and *that* triggered fresh waves of incredulous outrage when we all found out that the Supreme Court doesn't have any:

https://www.poynter.org/fact-checking/2023/why-doesnt-the-supreme-court-have-a-formal-code-of-ethics/

When Congress made tentative noises about providing minor checks and balances on the court, the justices erupted in outrage, telling Congress to go fuck itself:

https://int.nyt.com/data/documenttools/supreme-court-ethics-durbin/cf67ef8450ea024d/full.pdf

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Why doesn’t the Supreme Court have a formal code of ethics? - Poynter

A ProPublica story about Justice Clarence Thomas accepting gifts from a billionaire has renewed calls for the court to adopt a formal ethics code

Poynter
Show threadCory DoctorowNov 17, 2023

Chief Justice Roberts went on whatever the opposite of a charm-offensive is called (an "offense offensive?"), a media tour whose key message to the American people was "STFU, you're hurting our feelings":

https://news.bloomberglaw.com/us-law-week/roberts-defends-high-court-against-attacks-on-its-legitimacy

To the shock of no one except billionaires and Supreme Court justices inhabiting the splendid isolation from societal norms that is the privilege of life tenure, America didn't like this.

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John Roberts Decries Attacks on Supreme Court’s ‘Legitimacy’ (2)

US Chief Justice John Roberts said he’s concerned criticism of the Supreme Court over controversial decisions has veered into attacks on its legitimacy as an institution.

Show threadCory DoctorowNov 17, 2023

The Supreme Court's credibility plummeted. A large supermajority of Americans - 79%! - now support age limits for Supreme Court justices:

https://pluralistic.net/2023/10/18/the-people-no/#tell-ya-what-i-want-what-i-really-really-want

Support for packing the Supreme Court is at an historic high and gaining ground, now sitting neck-and-neck with opposition at 46% in favor/51% opposed. Among under-30s, there's a healthy majority (58%) in favor of appointing more SCOTUS justices.

8/

Pluralistic: What Americans want (18 Oct 2023) – Pluralistic: Daily links from Cory Doctorow

Show threadCory DoctorowNov 17, 2023

As Roberts' wounded bleats reveal, SCOTUS is *very* sensitive to its plummeting legitimacy. After all, the court doesn't have an army, nor does it have a police force. Supreme Court rulings only matter to the extent that the American people accept them as legitimate and obey them.

9/

Show threadCory DoctorowNov 17, 2023

Transformational presidents (Lincoln, FDR) waged successful wars against the Supreme Court, sidelining its authority and turning it into an unimportant rump institution for years afterward:

https://pluralistic.net/2023/05/26/mint-the-coin-etc-etc/#blitz-em

Now the Supremes are working their way through the (mythological but convenient) five stages of grief. Having passed through Denial and Anger, they've arrived at Bargaining, with the publication of the court's first "code" "of" "conduct":

https://www.supremecourt.gov/about/Code-of-Conduct-for-Justices_November_13_2023.pdf

10/

Pluralistic: How (and why) Biden should overcome the Supreme Court to end the debt showdown (26 May 2023) – Pluralistic: Daily links from Cory Doctorow

Show threadCory DoctorowNov 17, 2023

It's...not good. As #MaxMoran writes for #TheAmericanProspect and #TheRevolvingDoorProject, the proposed code amounts to #SecurityTheater, a set of trivially bypassed strictures that would not have prevented any of the scandals to date and will permit far worse once in the years to come:

https://prospect.org/justice/2023-11-17-supreme-court-objectivity-theater/

The security framing is a very useful tool for evaluating the Supremes' proposal.

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The Supreme Court’s Objectivity Theater

The Court wrote a new ethics code for itself. It’s all but meaningless.

The American Prospect
Show threadCory DoctorowNov 17, 2023

The purpose of a code of conduct isn't merely to prevent people from accidentally misstepping - it's to prevent malicious parties from corrupting the judicial process. To evaluate the code, we should #RedTeam it: imagine what harms a corrupt judge or a corrupting billionaire would be able to effect while staying within the bounds the code sets.

Seen in that light, the code is wildly defective and absolutely not fit for purpose.

12/

Show threadCory DoctorowNov 17, 2023

Its most glaring defect is found in the nature of its edicts - they are almost all *optional*. The word "should" appears 53 times in the document, while "must" appears just six times:

https://ballsandstrikes.org/ethics-accountability/supreme-court-code-of-conduct-hilariously-fake/

Of those six "musts," two are not pertinent to ethical questions (they pertain to the requirement for a justice to get prior approval before getting paid for teaching gigs).

13/

Supreme Court: Our New “Code of Conduct” Actually Isn’t Real

The Supreme Court's fancy new code of conduct contains absolutely no provisions for meaningful enforcement.

Balls and Strikes
Show threadCory DoctorowNov 17, 2023

When the code of conduct was rolled out, the court and its apologists pointed out how it was modeled on the ethical guidelines that bind lower courts. In the wake of the Thomas revelations, these guidelines were a useful benchmark to measure Thomas's conduct against. The fact that other judges would have been severely sanctioned or even fired if they had engaged in the same conduct as Thomas was a powerful argument that Thomas had overstepped the bounds of ethical conduct.

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Show threadCory DoctorowNov 17, 2023

But as *Bloomberg Law* discovered when they compared the lower courts' codes to the Supremes' draft, the Supremes have gone through those lower court codes and systematically cut nearly every mention of "enforce" from their own draft. They also cut the requirement to "take appropriate action" if a violation is reported.

If you are a bad judge or a bad donor, all of this is good news.

15/

Show threadCory DoctorowNov 17, 2023

Nearly everything that it condemns is merely optional, which means that if a judge can be convinced to ignore a rule, they won't have violated the code. What's more, even widespread rulebreaking doesn't trigger an investigation. That's a very weak security measure indeed.

But it gets worse. The Supremes' code also omit key definitions found in the codes that bind the lower courts.

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Show threadCory DoctorowNov 17, 2023

The most important definition to be cut is for "political organization," which the lower courts define expansively as both parties and "entit[ies] whose principal purpose is to advocate for or against political candidates or parties."

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Show threadCory DoctorowNov 17, 2023

That definition captures "nonprofits, think tanks, lobbying firms, trade associations, grassroots groups" - the whole panoply of organizations whom federal judges must maintain an arm's length distance from in order to preserve their objectivity. Federal judges may not lead, speak at or donate to these organizations.

18/

Show threadCory DoctorowNov 17, 2023

By omitting this definition, the Supremes open the door to involvement with precisely the kinds of PACs, thinktanks and other influence organizations funded by the billionaires who have benefited so handsomely from the judges' rulings.

19/

Show threadCory DoctorowNov 17, 2023

What's more, the Supremes carve out an explicit exemption for speaking to "nonprofits, think tanks, lobbying firms, trade associations, grassroots groups," and to serving as a director, trustee or officer of "a nonprofit organization devoted to the law, the legal system, or the administration of justice and may assist such an organization in the management and investment of funds."

20/

Show threadCory DoctorowNov 17, 2023

As Moran points out, this exemption would cover - among other institutions - the far-right #FederalistSociety, which satisfies all those criteria. That means a Supreme Court justice could sit on the board and raise funds for the #FedSoc without raising any issues with this code - not even one of those squishy "shoulds."

21/

Show threadCory DoctorowNov 17, 2023

Nothing in this code would stop Clarence Thomas or Thomas Alito from accepting lavish gifts, private jet rides, or luxury tour buses from billionaires with business before the court:

https://abcnews.go.com/US/wireStory/justice-thomas-267000-loan-rv-forgiven-senate-democrats-104303972

As Moran writes, these definitional vacuums are a well-understood class of weaknesses in ethics codes.

22/

Most of Justice Thomas' loan for RV seems to have been forgiven: Senate Democrats

This raises tax and ethics questions, report by Senate Democrats says.

ABC News
Show threadCory DoctorowNov 17, 2023

Congress gets a lot of mileage out of this ruse - for example, by narrowly defining "lobbying" to exclude things that most people understand that term to mean, Congress engage in improperly close relations with lobbyists while still maintaining that they hardly ever talk to a lobbyist at all:

https://www.politico.eu/article/jeff-hauser-opinion-watergate-european-union-qatargate/

22/

What the European Union has to learn from Watergate

There should no longer be any doubt that the Parliament must reform its ethics practices if it wants to maintain any popular legitimacy in the eyes of European citizens.

POLITICO
Show threadLorraine LeeNov 18, 2023
@pluralistic If sidelining the authority of the Court is a good thing, perhaps Bibi is one of the good guys?