Boston Herald

Thomas dispute plunges SCOTUS deep into party politics

- By Douglas Schoen Douglas Schoen is a longtime Democratic political consultant.

Supreme Court Justice Clarence Thomas’ failure to disclose his ties to billionair­e conservati­ve donor Harlan Crow has further tainted the integrity of the highest court in the land, plunging it deeper into party politics.

Justice Thomas has come under fire for neglecting to report that he and his wife vacationed on Crow’s yacht and flew on Crow’s private plane to a resort in upstate New York and a private club in Northern California also owned by Crow. Justice Thomas also failed to disclose that Crow, who funds conservati­ve groups like the Federalist Society and Club for Growth, bought property from him, including the house where Thomas’ mother currently lives.

In response to these revelation­s, Senate Democrats want to investigat­e Justice Thomas and compel him to appear at a congressio­nal hearing. While this extraordin­ary step might very well be appropriat­e and necessary, it would ultimately drag our nation’s “independen­t” judiciary further into the political fray.

Our Founding Fathers intended for the Supreme Court to be insulated from politics, as the job of the judiciary is to impartiall­y interpret the laws written and enforced by partisan elected officials. Yet, the Supreme Court has come to be viewed as a partisan institutio­n, and public trust in the high court is at an all-time-low. A recent Gallup poll found that just 25% of Americans have confidence in the Supreme Court, which marks an 11-point decline in the past year alone.

Part of the reason confidence in the court has plummeted is because of the dramatic increase in political polarizati­on over the last decade, which has rendered Congress unwilling and unable to enact compromise legislatio­n on important issues. This has empowered unelected judges to essentiall­y make sweeping changes to laws that affect millions of Americans’ lives.

In just one term, the current Supreme Court’s 6-3 conservati­ve majority delivered major wins for the right’s agenda and dramatical­ly altered the course of American law in a way that largely went against the will of the public and — in the case of the Dobbs v. Jackson decision, which ended the legal right to abortion — upended decades of precedent.

Regrettabl­y, the Supreme Court’s upcoming decisions this term are almost certain to continue this troubling trend. The high court is set to hear arguments in cases involving the legality of the most commonly-used abortion pill, gerrymande­ring, and the constituti­onality of affirmativ­e action in college admissions.

To be sure, both parties are also guilty of using the Supreme Court as a political weapon, which has damaged the institutio­n’s integrity. Republican­s outwardly manipulate­d the confirmati­on process to solidify a conservati­ve majority on the Supreme Court during the previous two presidenti­al administra­tions, and many Democrats have advocated for passing a law during Joe Biden’s presidency that would expand the size of the Supreme Court, i.e., “court packing,” in order to shift its ideologica­l balance in their favor.

In many ways, both parties are responsibl­e for the hyper-partisan situation the Supreme Court now finds itself in. In 2013, then-Senate Majority Leader Harry Reid changed the filibuster rules so that they would not apply to the federal judiciary aside from Supreme Court justice confirmati­ons. Republican­s were deeply offended by this partisan move, with Sen. Susan Collins saying Democrats would “rue the day they broke the rules to change the rules.”

Just a few years later, Sen. Collins’ words would prove prophetic, when Republican­s effectivel­y froze former President Obama’s selection of now-Attorney General Merrick Garland from being confirmed to the high court, hastening enhanced partisansh­ip in the selection process for the country’s most important court.

Also damaging to the integrity of the entire judicial branch is the growing trend of judge shopping at the District Court level. The judicial system is not built for plaintiffs to be able to handpick their judge, and yet, as we just witnessed with the U.S. District of Northern Texas, the plaintiffs set up an office in Amarillo solely to hand-pick an outwardly anti-abortion judge who they knew would rule in their favor.

The judiciary should not be mired in such political controvers­y, and in fact, has not been for much of America’s history. Even as recently as the 2000s, the court was not nearly as politicize­d, and qualified judges were usually confirmed almost unanimousl­y, regardless of whether they were liberal or conservati­ve.

Liberal Justice Ruth Bader Ginsburg was confirmed by a 96-3 vote in 1993, and conservati­ve Chief Justice John Roberts was confirmed by a 78-22 vote in 2005. Now, every jurist is confirmed essentiall­y on party lines with very few crossover votes.

While suggestion­s such as court packing are counterpro­ductive, there are actions Congress can take to restore public confidence in the Supreme Court and the courts generally.

The first step should be imposing the same formal code of ethics upon Supreme Court justices that the rest of the federal judiciary is subject to, which 69% of Americans support, per a YouGov poll taken after the Justice Thomas scandal broke. Additional steps could be term limiting federal judges and strictly enforcing guidelines for required recusals of judges in certain cases where conflicts are present.

Chief Justice John Roberts could also take initiative to hold his Court accountabl­e by enforcing a self-ordered strict code of ethics on the sitting justices.

Ultimately, the politiciza­tion of the American judiciary has the country on the verge of a constituti­onal crisis. Congress and Chief Justice Roberts must act immediatel­y in order to enforce accountabi­lity and restore integrity.

 ?? J. SCOTT APPLEWHITE, FILE — THE ASSOCIATED PRESS ?? Associate Justice Clarence Thomas poses with other members of the Supreme Court for a new group portrait, at the Supreme Court building in Washington in October. Thomas has for more than two decades accepted luxury trips nearly every year from Republican megadonor Harlan Crow without reporting them on financial disclosure forms, ProPublica reports.
J. SCOTT APPLEWHITE, FILE — THE ASSOCIATED PRESS Associate Justice Clarence Thomas poses with other members of the Supreme Court for a new group portrait, at the Supreme Court building in Washington in October. Thomas has for more than two decades accepted luxury trips nearly every year from Republican megadonor Harlan Crow without reporting them on financial disclosure forms, ProPublica reports.

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