Democrats have one way to correct corruption of Justices Thomas and Alito: expert

Calls are mounting for U.S. Senate Judiciary Chairman Dick Durbin to hold hearings on Supreme Court ethics and corruption, subpoena right-wing Justices Clarence Thomas and Samuel Alito, and have them explain why, as some, including Democratic Jewish Senators, believe they are promoting Christian nationalism rather than properly interpreting the Constitution and U.S. law, while accepting lavish gifts.

Chief Justice John Roberts has already refused to appear before the Senate Judiciary Committee, and Justice Alito has said Congress has no power over him or the Court.

“In the summer of 2023, Justice Samuel Alito told the Wall Street Journal that Congress has no authority to regulate the Supreme Court, despite the ethical regulations Congress already imposes on the justices,” the Brennan Center for Justice reported last month. “Around the time he made this erroneous statement, the justice saw fit to fly a flag in his yard that had been carried by January 6 rioters and associated with the ‘Stop the Steal’ insurrection movement, marking the second time since January 6 that such a flag had flown outside of the justice’s residence.”

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Last week the Senate Judiciary Committee revealed Justice Thomas took even more trips paid for by billionaire Harlan Crow than he had disclosed and that had never before been reported. Thomas has received an estimated $5.8 million in gifts over the past two decades, a large portion from Crow, the government watchdog Fix the Court revealed two weeks ago.

Justice Alito’s recent remarks revealing he believes the Supreme Court has to move the nation to one of “godliness,” on top of the symbols of insurrection flying at his homes, has some Americans deeply concerned about his Christian nationalism and the effect it has on his ability to deliver impartial rulings.

Chairman Durbin has steadfastly refused to issue subpoenas to anyone on the Supreme Court. Last summer he defended not even inviting Justice Thomas to a committee hearing on ethics, saying the invitation would have been ignored.

Should Democrats be relying on the Senate to fix the Supreme Court?

No, says Vox’s Ian Millhiser, author of two books on the Supreme Court: Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted (2016), and The Agenda: How a Republican Supreme Court Is Reshaping America (2021).

“What can Democrats actually do about Thomas’s and Alito’s corruption?” Millhiser, who writes about the Supreme Court and the Constitution, asks in his latest piece at Vox. “Nothing, unless they win the election,” he answers.

“At the end of the day, the future of the Supreme Court will be decided by the November election. If President Joe Biden prevails, he is likely to appoint more judges like his Supreme Court appointee Justice Ketanji Brown Jackson, a mainstream liberal. If Donald Trump prevails, he is likely to fill the bench with Alitos.”

Millhiser says, “what, exactly, could Durbin — or any other Democrat, for that matter — actually do about Thomas’s and Alito’s dubious relationship with judicial ethics? The honest answer is ‘not much.’ ”

“Congress, certainly could do a great deal to check these two men’s power. Congress, after all, has the power to impeach and remove justices,” he writes.

But there’s more.

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“It also could add seats to the Court, which would quickly be filled by Biden appointees who would effectively neutralize Thomas and Alito’s votes. It could potentially strip the Court of much of its jurisdiction. It could take away some of the Court’s budget — perhaps the parts that pay for Thomas’s and Alito’s law clerks and staff. It could even evict the Court from its marble palace and move the justices’ office space to a shack in Nome, Alaska,” he notes.

“But no legislation reforming the Supreme Court, no matter how ambitious or how modest, is likely to pass so long as Republicans control the House of Representatives,” Millhiser notes.

Of course, there has to be a Democrat in the White House and at minimum a Democratic majority in the Senate to actually get progress.

Millhiser also cautions those seeking to paint Democrats as the problem.

“There’s no reason to doubt the good faith of advocates who want the Senate to pressure out-of-control justices to behave ethically and professionally. Far too many of these advocates, however, have allowed a tactical disagreement with Durbin to make Democrats the villain in this narrative and undermine the party in November.”

Or, as he puts it on social media, “I’m worried that some Democratic activists need a reality check. If two Republican justices are behaving horribly, the right thing to say about this scandal is not ‘Democrats are feckless.’ Attack your enemies, not your friends!”