July 15, 2023

Unsteady politics breeds ugly innovations, and this year, those innovations are striking at the heart of America’s constitutional order.  In the last half-week alone, three negative stories about Supreme Court justices have appeared in major outlets, on top of multiple stories since January.  None of these stories covers the law; all of them suggest ethical improprieties but stop just short of alleging them; and cumulatively, they push against the freedom of association of the justices and their staff.  At no point in our history have Americans seen an entire media, academic, and political apparatus line up to indiscriminately attack one of our branches of government.  But, in the face of a conservative Supreme Court determined to rein in national power, we’re seeing that now.

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The first hit this week came on the front page of Sunday’s New York Times, in a report on Justice Clarence Thomas’s membership in the Horatio Alger Association, which provides scholarships to young lower-income Americans — a quote-filled piece where the one concrete connection to the Supreme Court was that the justice awards society memberships inside the Court halls.  The second came in a report on Justice Sonia Sotomayor, whose staff apparently pressured colleges at which she’s spoken to buy her books.  The third, from The Guardian, involved Venmo payments from a lawyer appearing in front of the Court to a clerk of Justice Thomas’s for Christmas party expenditures.  These come on the heels of six months of accelerating reports on the “improprieties” of the six conservative justices, starting with Chief Justice Roberts (twice), moving to Thomas, continuing with Justice Gorsuch, circling back to Thomas, and extending to Justice Alito as well as to Justice Barrett.

With a single exception, not one of these reports showed a direct, obvious connection with the actual business of the Court — and the exception was a sentence revealing that the late Justice Ginsburg accepted hospitality from a billionaire who’d received a favorable ruling the year before.  In another era, one or two of these stories might have risen to the level of anecdotes shared off the record at a D.C. party — evidence of the casual insiderism or unapologetic careerism or uninformed associating that’s characterized Washington for forty years.  But the point of the pieces isn’t the stories themselves.  It’s the colorful shadings these stories introduce and the narrative those shadings create: one that, bit by bit, day by day, week by week, delegitimizes the Court.

According to this narrative, the justices are compromised by their associations, and so their rulings are corrupt.  Examples, in this telling, are everywhere.  Clarence Thomas has received gifts from a billionaire Republican donor who likes to collect Nazi memorabilia; Justice Alito rode on a plane owned by a Republican philanthropist; Chief Justice Roberts’s wife recruits lawyers for firms with business before the Court; a house that Justice Gorsuch owned was sold to a member of a law firm with business before the Court.  Read one by one, the stories’ details nullify their headlines: Justice Gorsuch’s share in the property was 20 percent, and he’d never met the seller; Justice Alito’s acceptance of an unoccupied seat avoided imposing cost on his security detail; Jane Sullivan Roberts had moved into recruiting to avoid questions of impropriety when her husband assumed the chief justiceship; Justice Thomas’s friend was an ardent collector of memorabilia of all kinds and never appeared before the Court.  But appearing with drumbeat regularity, then transformed into clickbait, the effect of the stories is numbing.  They beat into the head of anyone who sees Yahoo or Edge News headlines that the Court is corrupt — or worse.  Google CLARENCE THOMAS NAZI, and you get 10,500,000 Google results.

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The clickbait is being pushed from a specific place: establishment outlets like The New York Times and ProPublica, organizations run by Democrat-affiliated or Democrat-sympathetic operators and funders who owe their success to government largesse.  It’s their reporters who generate the content that becomes the clickbait, and it’s their commentators, many connected to the legal academy, who either spread the stories or don’t object to them.  Occasionally, a less partial organization will follow the trail in a less politically singular direction, as The Associated Press did with Justice Sotomayor — but the only overall effect is to train more focus on the Judiciary.

From the original pieces, it’s only a short journey into both the internet ether and fundraising emails from Democrats attacking the Court in the name of “ethics reform” — a selective push that has nothing to do with reforming Washington’s ugly insiderism and everything to do with politics.  The people pushing this line admit as much: as New Republic editor Michael Tomasky put it, “the court is corrupt, both judicially and ethically, because of the extreme ideology six of its justices serve.”  That “extreme ideology,” of course, amounts to a reasoned belief in reducing the power of the national government on which people like Tomasky rely.

So far, the rejoinders to this push have been ineffective.  Republicans respond, when they do, by shifting the focus of impropriety to Democratic appointees like Justice Sotomayor.  Or they agree on the need for ethics reforms but defend the Court’s legitimacy.  Or, most of all, they dismiss the allegations, reasonably, as absurd.  “Lol come on,” wrote a respected legal commentator on Twitter.  From another: “Okay these stories are like part of an elaborate avant garde public performance now right?”  Said a third: “Not remotely a scandal…Judges are not monks.”

But this last comment gets at the bigger threat these allegations pose, which Republicans haven’t confronted: judges aren’t monks, free to associate with nobody outside monastery walls, yet this is exactly what these reports are trying to make them into.  The list of questions the reports raise is endless, which is exactly their point.  Does Justice Sotomayor have to worry about a subordinate who might handle a booking in a way that colleges construe as pushy?  Does Justice Thomas have to vet Venmo charges to casual events, or should he have these events at all?  Can the justices’ spouses have their own careers?  If the Court passes “ethics reform,” will this quiet criticism open the justices up to more scrutiny?  If the justices change the way they rule on cases, can they ward off the blow?

The logic here is the schoolyard’s: make the smartest kid in the class, the one who says the things others don’t want to hear, afraid to speak up because afterwards, at recess, he will get punched.  In this case, that logic means immobilizing an entire branch of government with slurs and innuendo.

Republicans should focus on broadcasting this simple reality: the forces that benefit from national authority are using the media to impair the branch of our government that wants to shift authority from the nation to the states.  Anyone who cares about power balances or political legitimacy should be awake to what’s happening — and Republicans need to sound the alarm.