The problem for this 'conservative court' is that it’s a 'conservative court'

09 May 2023

Last week, the Senate Judiciary Committee began examining judicial ethics in the wake of numerous reports exposing the breathtaking absence of judicial ethics on the part of US Supreme Court Justice Clarence Thomas.

The committee’s Republicans have expressed outrage. They say the panel’s Democrats are trying to impugn the court’s integrity, because its rightwing supermajority has handed down rulings that the Democrats do not like.

“This is not about making the court better,” US Senator Lindsay Graham, of South Carolina, said. “This is about destroying a conservative court.”

The reporting comes from ProPublica.

In recent weeks, the investigative news outlet has revealed that Justice Thomas accepted for decades free vacation and travel from a Texas real estate magnate. It later reported that the same billionaire, Harlan Crow, bought three properties from the Thomas family. On Thursday, it reported that Crow paid boarding school tuition for Thomas’s grandnephew. Justice Thomas did not report these gifts on required federal disclosure forms.

These facts, which Justice Thomas does not dispute, are the basis for the Judiciary Committee’s inquiry. The Republicans would like you to forget that. They’d like you to think the Democrats are using the news as a pretext for undermining the court’s public reputation. They’d like you to think there’s nothing going on other than Democrats signaling their virtue.

They’d like you to think, moreover, that a “conservative court,” as Graham put it, is a legitimate court, and that its rulings as a “conservative court” are legitimate, too. The Republicans would like you to think that the nationwide backlash to those rulings is not the fault of the court itself. They’d like you to think the people participating in that backlash are just playing politics.

To which we should all say un hun.

To the “conservative” way of thinking, a Supreme Court that produces decisions that they do not like is an “activist court” tainted by the impure hand of politics that must be reformed. However, a court that produces decisions that they do like is a court that’s high above the rest of humanity, untouched by the impurities of politics and practically the voice of God.

This double standard is how the Republicans are capable of acting holier than thou while playing the same politics they pretend to scorn. Here’s US Senator Mike Lee, of Utah, who sits on the committee: “If any combination of Justice Kagan, Justice Sotomayor and Justice Jackson did what Justice Thomas is being criticized mercilessly for doing, I would defend them too.

“Why would I defend them?” he tweeted. “If they had done exactly what Justice Thomas did, they would have done nothing wrong. It’s important to avoid undermining the integrity of the Supreme Court, as one does when mercilessly attacking any justice in the absence of actual wrongdoing, and for conduct that, if wrong, would implicate most of the justices.”

If there’s anyone who thinks Mike Lee would defend Justice Jackson after she’d been exposed for accepting what appear to be decades of bribes from a “leftwing” billionaire – say, George Soros – go on. Raise your hand.

But the problem for this “conservative court” isn’t the Democratic critics. The problem isn’t Justice Thomas’ breathtaking absence of judicial ethics. The problem for this “conservative court” is that it’s a “conservative court.”

The Republicans are trying to maintain the court’s integrity by attacking the Democrats. But the court doesn’t need any help. It’s undermining itself by continuing to issue “conservative” rulings that are out of sync with a majority of Americans, most dramatically its reversal of abortion rights.

There’s nothing that can be done about Justice Thomas, not with the current configuration of the Congress. There’s nothing that can be done about Roe, not with the current configuration of the court. But the Senate Judiciary Committee’s inquiry isn’t meaningless. It’s an expression of the democratic need for action even when the specific action is unknown.

And that need isn’t going to let up.

Lindsay Graham is wrong about the Senate Judiciary Committee’s hearings. They are about making the court better. But Graham is right, too. To make the court better, it must be made less “conservative.” It must be made to reflect the electorate’s mainstream. At the moment, it’s out of balance.

It will be for some time to come.

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