A corrupt court in denial is not going to reform itself

23 April 2023

The last thing I said about the eldest member of the United States Supreme Court’s right-wing supermajority almost certainly failed to lift your confidence in American democracy. I said that Justice Clarence Thomas is telling us he’s above the law, that there’s nothing we can do about it, and that by telling us there’s nothing we can do about it, he’s telling us who he is: a terrible man who will tell us what the law is until the day he dies.

While I almost certainly failed to lift your confidence in American democracy, I didn’t intend to decimate it. We should keep on keeping the faith. Democracy is complex. Liberal democracy is more complex. Causes have effects. Decisions often have serious but unintended consequences.

One of these unintended consequences, and I’m indulging here in a bit of speculation, could be this: that in the corruption of Justice Thomas and co-conspirator Ginni Thomas lies the possibility of redemption for the high court, or the appearance of redemption, which is all that really matters when it comes to maintaining the social standing of half the country.

The possibility of (the appearance of) redemption arises from two things happening simultaneously but randomly. One, as you know, is Thomas’ corruption. (We can thank ProPublica for exposing that.) The other is a set of rulings by rando judges trying to outlaw abortion by invalidating rules that govern whether and how pregnant people access the abortion pill.

The Supreme Court had paused these rulings, the first time two Fridays ago, then again Wednesday, then finally last night. The Times said the ruling “halted steps that had sought to curb the availability of mifepristone as an appeal moves forward: a ruling from a federal judge in Texas to suspend the drug from the market entirely and another from an appeals court to impose significant barriers on the pill, including blocking access by mail.”

None of this is to say the fate of mifepristone is safe and sound. It isn’t. It is to say that the Supreme Court did not automatically side with rando judges, which is what you’d expect from a right-wing supermajority that’s been compromised by its eldest member. Moreover, it’s to say that despite Justice Thomas seeming OK with admitting that he’s corrupt, the others seem less inclined. They don’t brag about it. They want to hush it up.

Adding to the hush-it-up incentive is a recent request by the chairman of the Senate Judiciary Committee for a voluntary interview with Chief Justice John Roberts. The request came after ProPublica’s twin blockbusters, one report about Justice Thomas getting lavish gifts from a Texas real estate billionaire and the other about the same billionaire buying three properties owned by the Thomas family, including the house where his elderly mom still lives. NPR said that US Senator Dick Durbin “said in a letter to Roberts on Thursday that recent reports found the justices are ‘falling short’ of the ethical standards they and other public servants are supposed to follow.”

"The status quo is no longer tenable," Durbin said.

I don’t believe Roberts cares about the court’s institutional reputation. If he did, he’d never have allowed the court to strike down Roe. He knows that most people most of the time want abortion to be legal even if they hate it. He knows with Roe gone, the court’s public image has been ensh*ttified.

What I do believe, however, is that Roberts cares about the rest of us caring about whether he cares about the court’s institutional reputation. The more we believe that he cares about something so noble, the less inclined the rest of us are to believe that he’s totally in the tank with the rest of a right-wing supermajority that’d rather rule the country by judicial fiat.

So what’s at stake isn’t just Roberts’ reputation or the court’s reputation, but a public image that neuters suspicion about the court that’s been stoked by public-interest reporting and by Justice Thomas coming this close to saying me and Ginni, we’re dirty as hell – whaddaya gonna do about it?

“You don't want the political branches telling you what the law is,” Roberts said in reaction to the outcry over the court’s Roe ruling, “and you don't want public opinion to be the guide about what the appropriate decision is.”

But given what’s at stake, we could say he probably means the opposite – that to maintain confidence in the court’s integrity, it’s in the court’s interest to let the political branches tell it what the law is and to “want public opinion to be the guide about what the appropriate decision is.”

Put another way, striking down Roe made a bad situation. Rando judges are making a bad situation worse. Now here’s Justice Thomas, sticking his dick in the mashed potatoes. Maybe it’s time to back off before it’s too late.

Time will tell. By the time the Supreme Court hears all cases related to the mifepristone, the ground may have shifted enough so that siding with judges who want to play doctor doesn’t look as corrupt as it does now.

But I’m skeptical of the ground shifting that much.

Even Americans who are scarcely paying attention to the rank corruption of Justice Thomas know something is rotten when the highest court in the land permits the decimation of the social standing of half the country.

We shouldn’t expect a corrupt court to reverse that decision. We can, however, expect a corrupt court to pretend it isn’t corrupt. From that makebelieve may come a ruling that maintains some social standing.

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