So it turns out that a huge number of voters actually do understand that it’s essential for a functioning democracy to have a fair and uncompromised judiciary, even when the rules needed to make that happen tends to be arcane and unsexy. They finally get it ... in Israel.
Incredible scenes have been witnessed in the streets of Tel Aviv, where last weekend a record throng of as many as 160,000 protesters packed every inch of the main thoroughfares downtown to voice their extreme displeasure with proposed changes by the increasingly far-right government of Prime Minister Benjamin Netanyahu. Coupled with protests in other Israeli cities, it’s been estimated that the rate of citizens protesting in the Middle Eastern nation is the equivalent of 8.6 million Americans taking to the streets, or about three times the size of the 2017 Women’s March.
And the protesters are so outraged over the Netanyahu-backed changes — which would restrict the ability of Israel’s Supreme Court to strike down legislation or overrule the executive branch — that they vow to be back every week, even as government forces respond with water cannons or other more forceful measures. “I hope that this huge demonstration will effect and prove that we are not going to give up,” 53-year-old history teacher Ronen Cohen told Reuters.
Here in the United States, citizens have already seen the independence and moral standing of our Supreme Court shrink under the weight of millions and now billions of dollars in billionaire “dark money” around the confirmation and lobbying of high court justices, their frequent ethical lapses, and the increasingly political and thinly justified majority decisions they hand down. But this deterioration has been allowed to fester over decades, like a frog in boiling water, and not in one fell swoop as proposed for Israel. The streets here are empty.
I thought about how the Supreme Court — atop one of our three co-equal branches of government — doesn’t get enough scrutiny, even as its poor ethics and its rulings erode our freedoms. In a moment when Americans claim heightened fear for our democracy, I watched journalists drop two recent bombshells that landed largely with a dull thud, ignored in our frenetic news cycle.
The first was a report in The New York Times that the wife of Chief Justice John Roberts — Jane Sullivan Roberts, who had been a high-powered law partner — is now making millions of dollars in commissions for placing lawyers with top law firms, some of which then argue cases before the court where her husband presides. That highlighted the large sums of money that elite insiders throw at each other for inscrutable services. But much more importantly, the Times report called attention to the mind-boggling fact that the Supreme Court continues to lack any code of ethics that would clarify issues around the income and political activity of justices’ spouses, and whether Roberts should recuse himself from cases involving his wife’s patrons.
A few weeks later, there was a stunning article in Politico about how the lifestyle of the head of the Federalist Society, the conservative legal society that grooms and then supports Republican judicial nominees, “took a lavish turn” after Leonard Leo also became unpaid legal adviser to then-President Donald Trump as he named three Supreme Court justices. Politico traced an elaborate web of transfers of tens of millions of dollars between non-profit and for-profit entities linked to Leo, while he purchased things like two mansions in Maine and other documented luxury perks. And that was before Leo’s network scored an unbelievable $1.6 billion (yes, with a “b”) donation from a 90-year-old Chicago industrialist.
The articles got little or no mention either on cable TV news or from rival papers, during a time when discoveries of obscure and probably misfiled classified documents in Joe Biden’s broom closet or Mike Pence’s sock drawer or wherever were getting hours of coverage. Stories about the complex doings of the 1% can be hard to understand for us mortals who don’t walk around with million-dollar checks falling out of our back pockets.
The truth is that normal Americans don’t pay much heed to the Supreme Court until the day it makes a major decision that breaks past precedent and often common sense and deeply affects them, and which goes against what most people support — like last year’s reversal that stripped millions of women of their reproductive rights, or the ruling that makes it harder for the government to attack climate change, or the decision a decade ago that gutted the 1965 Voting Rights Act. But here’s the thing: Those bad, anti-democratic rulings are the direct result of the billionaire money that envelopes the high court, and the ethical laxness it seems to inspire.
Gabe Roth of the group Fix the Court, which advocates for a number of commonsense, good-government reforms, told me this week that a code of ethics — which Roberts and the other justices were reportedly discussing in the late 2010s, and which is also the subject of proposed legislation in Congress — is simply the most basic “first step” toward a long-overdue reform of the Supreme Court.
“We have to start somewhere and an ethics code is the most logical, and least controversial, and the easiest,” Roth said. “There already is a code in the lower courts that you could graft, with a few changes here or there.” He said an ethics code for the high court could be the “gateway drug” for more ambitious reforms sought by advocate groups, such as new guidelines around financial disclosure and stock ownership, or public appearances.
To make their point, Fix the Court maintains a list of “recent ethical lapses” by Supreme Court justices that runs to roughly 80 or so instances and covers every single sitting justice, conservative or liberal, as well as a few of those recently departed. Some of the breaches are minor and some are debatable; many involve a justice’s failure to recuse from a case where they might have financial or personal conflicts of interest.
But several of the “ethical lapses” on the court should be major national scandals, of the Tel-Aviv-people-in-the-streets variety.
The mother of all current SCOTUS scandals (or maybe it should be called “the wife”) is the failure of Justice Clarence Thomas to recuse himself from matters surrounding Trump’s 2020 election and the Jan. 6, 2021, insurrection — despite growing evidence of wife Ginni Thomas’ significant involvement in efforts to overturn President Joe Biden’s victory. But Thomas also has the longest entry in the list complied by Fix the Court, which notes incidents such as private jet trips and lavish gifts from a financier, Harlan Crow, or attending a Palm Springs retreat backed by the oil-and-gas giant, Koch Industries.
Last year, a New York Times report centered on an alleged advance leak of a major religious freedom decision by Justice Samuel Alito also spotlighted how a web of super-rich, socially conservative political donors had worked together to wine and dine key justices like Alito and Thomas at fancy restaurants or their own vacation homes and resorts, while hobnobbing with the jurists at fundraisers for a Supreme Court Historical Society. That effort gave millionaires seeking — successfully, as we saw in 2022 — to overturn the right to an abortion the kind of access to America’s most powerful jurists that a poor, would-be single mother didn’t have.
In that context, handing the justices a code of ethics — which might place limits on this millionaire cavorting, or a spouse’s outside activity, or make it more clear when recusal is called for — feels like a baby step and yet also an essential one. There are other more ambitious fixes, such as the proposal by Sen. Sheldon Whitehouse, a leading voice for reform, for a DISCLOSE Act that would shine a brighter light on “dark money” spending by “court whisperers” like Leo. Even bolder reforms — like term limits for justices, backed by Roth’s Fix the Court, or expanding the number of justices — deserve a national debate, given the public’s loss of faith in the judiciary.
America has already been seeing the payback for the right’s big-money focus on the Supreme Court in those moves against reproductive and voting rights, and we could see it again this spring with major rulings on affirmative action and student loan relief. But these could be the proverbial tip of the iceberg.
Many fear the chaos around the transfer of presidential power in 2020, culminating in the insurrection, was a trial run for more upheaval in 2024 — a looming crisis that could end up at the feet of the nine justices. If the Supreme Court strikes down U.S. democracy, then you will see hundreds of thousands — if not millions — in the streets. But it might be too late.
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