In an op-ed piece in today's Times, Jeff Shesol points out that there's nothing very new about criticisms of Clarence Thomas and other conservative justices who have -- at present and in the past -- played politics.
Surely there is nothing new or unnatural about justices holding political views and seeking the company of others who share them. It is to be expected that when one believes that right-thinking Americans are locked in an existential struggle with home-grown “Bolsheviki,” as Chief Justice William Howard Taft did in the 1920s, one would invite the patriots, not the Reds, to Sunday brunch. It is hardly scandalous that justices are more likely to speak to friendly audiences than hostile ones. The court’s history, moreover, is filled with political machinations, like Justice William O. Douglas’s attempts to lead or at least join the Democratic presidential ticket; justices’ back-channel consultations with presidents, from F.D.R. to L.B.J.; and speechmaking about subjects far and (sometimes too) wide.
Yet there are few, if any, precedents for the involvement of Justices Thomas and Scalia with the fund-raising efforts of the Koch brothers. ...
Yup. Those two have gone out of their way to draw shame to a Court which was already severely damaged, most notably by taking an important case away from the Florida Supreme Court and insisting on making a federal ruling from "on high." It brought the Court down and there's been no visible recovery or even the faintest apology as the Court has moved on through a decade as though it believes it's still an unsullied institution. Indeed it apparently believes it's answerable to no one.
Two of the justices who contributed to the 2000 debacle have been engaged in serial attacks on the Court's reputation. Maybe its reputation has had dips in the past, but Scalia and Thomas are unrepentant and, as Shesol says, seem to have "doubled down."
During this past term, editorial boards, law professors and others have come forward with proposals to curb the court in various ways — changing the guidelines for recusal, for example, or holding justices accountable to the code of conduct. Whatever their virtues, none of these ideas are likely to take root. For more than a century, every meaningful attempt at Supreme Court reform has collapsed, and not for lack of ingenuity. The founders gave us a court that makes its own rules. As Justice Harlan Fiske Stone wrote in the 1930s, sternly rebuking some of his brethren, “the only check upon our own exercise of power is our own sense of self-restraint.”
In the face of criticism, the court’s conservatives may be doubling down. Justice Thomas, in particular, has lashed back, refusing to disclose activities and relationships that have been called into question. Stone’s admonition, clearly, is as relevant as ever. Over its history, the Supreme Court has faced periodic threats to its legitimacy and has survived with its powers intact, thanks in large part to its public esteem. At some point, another challenge will come. And the court, next time, may find fewer Americans on its side if its members allow themselves to be perceived, in Justice Breyer’s words, as “junior-varsity politicians” who possess, but do not merit, the last word.
___
We are temporarily liberated from the supremacy of a corrupt court even as July 4th comes up this weekend to remind us that the original intention of our forefathers was to establish freedom. The Supreme Court has wrapped up this term and is going home having "favored big business over the interests of consumers and employees and continued to lean toward an expansive view of the First Amendment" according to a summary of the cases in the Washington Post.
George Will, writing in the Post today, is gleeful that the First Amendment continues to protect money over both freedom and individual rights. The guy's getting old. Maybe next Monday a festive hot dog will lodge in his throat and take him to some real justice in the sky. Will calls the Court's term "a victory for the First Amendment."
The First Amendment is about free speech, children. What we're getting instead is freedom for 