The US supreme court’s alleged ethics issues are worse than you probably realize
It was a short letter. John Roberts, chief justice of the US supreme court, was brief in his missive to Democratic senator Dick Durbin, who chairs the Senate judiciary committee. Citing “separation of powers concerns and the importance of preserving judicial independence”, Roberts declined to appear before the committee to discuss disturbing recent revelations of ethics violations at the court.
Congress is meant to exert checks on judicial power – to investigate or even impeach judges who abuse their office or interpret the law in ways that violate its spirit, and to affirm that the elected branches will hold more sway over policy than the appointed one. But the chief justice’s show of indifference to congressional oversight authority reflects a new reality: that there are now effectively no checks on the power of the court – at least none that Democrats have the political will to use – and that the justices can be assured that they will face no repercussions even if they act in flagrant violation of ethical standards. It seems that they intend to.
The committee summoned Roberts to testify because it appears that he’s not exactly running a tight ship. On 6 April, an investigation by ProPublica found that Justice Clarence Thomas had, over decades, accepted millions of dollars’ worth of private plane flights, “superyacht” trips and luxury vacations from the Texas billionaire and conservative megadonor Harlan Crow – and that, in alleged violation of federal ethics law, he had not disclosed almost any of it.
Subsequent reporting revealed that Crow had in fact bought Thomas’s childhood home in Savannah, Georgia, where the justice’s elderly mother still lives, along with several plots on the block. After paying Thomas for the real estate, the billionaire cleared local blight, made significant renovations to the house and allowed Thomas’s mother to continue living there, rentfree. None of those transactions had been detailed on Thomas’s ethics forms, either. In addition to the soft influence Crow would have been able to buy with his extensive largesse, the billionaire’s generous gifts also seem to have created a direct conflict of interest for Justice Thomas: Crow’s firm had business before the US supreme court at least once, and Thomas did not recuse himself from the case.
It is not Thomas’s first time in ethical hot water. He was famously accused of sexual harassment by multiple women, including Anita Hill, during his time in the Reagan administration as head of the employee-rights protection watchdog, the Equal Employment Opportunity Commission. He has been accused of having perjured himself in his subsequent testimony about his behavior toward Hill at his confirmation hearings.
During his long tenure on the court, he has repeatedly had trouble filling out his financial disclosure forms correctly. Once, he failed to report more than half a million dollars in income that his wife, the conservative activist Ginni Thomas, received from the rightwing Heritage Foundation. He said at the time that he had misunderstood the forms. That was also his excuse regarding Harlan Crow’s largesse.
Thomas claims that he was advised that he did not have to report “hospitality”. It is a loophole in the ethics code that is meant to relieve judges of having to report, say, barbecue dinners at the homes of their neighbors – not, as Thomas claims he took it to mean, luxury yacht tours of Indonesia.
Although Thomas may be uniquely prolific in his alleged ethical violations, the problem isn’t unique to him. Politico revealed this week that just nine days after his confirmation to the US supreme court in April 2017, Justice Neil Gorsuch sold a log cabin in Colorado to Brian Duffy, the chief executive of the prominent law firm Greenberg Traurig. Before Gorsuch’s confirmation, the justice and the other co-owners of the home had tried for two years to sell it, without success.
Since the sale, Duffy’s firm has had business before the court at least 22 times. Gorsuch did disclose the income from the sale on financial disclosure forms, but failed to mention that the buyer was a big shot at one of the country’s largest law firms who would regularly bring cases before Gorsuch at his new job.
It’s certainly possible that Duffy simply liked the house, and that the convenient timing of his purchase so soon after Gorsuch’s confirmation to the court was a mere coincidence. And it seems reasonable to believe Thomas and Crow when they say that they are sincere friends, if less reasonable to believe Thomas when he claims that he misunderstood his disclosure obligations. But corruption need not be as vulgar and direct as a quid pro quo: it can be the subtle machinations of influence and sympathy that occur in these relationships, inflected both by money and by closeness, that lead the justices to see cases as they otherwise wouldn’t, or act in ways contrary to the integrity of their office and the interests of the law.
Bad intent by the justices need not be present for the mere appearance of corruption to have a corrosive effect on the rule of law, and both Gorsuch and Thomas have allowed a quite severe appearance of corruption to attach itself to the court. Both have claimed that they are such intelligent and gifted legal minds that they should be given lifelong appointments of unparalleled power, and also that they have made innocent mistakes on legal forms that they are too dumb to understand.
The claim strains credulity. What it looks like, to the American people who have to live under the laws that the supreme court shapes, is that Thomas has long been living lavishly on the dime of a rightwing billionaire who wants rightwing rulings, and that Gorsuch conveniently managed to sell a house he didn’t want at the precise moment when he became important enough to be worth bribing.
The chief justice doesn’t seem very worried about this appearance of impropriety. In light of these alarming ethics concerns, Roberts’ curt rejection of the committee’s invitation to testify speaks to an evident indifference to ethical standards, or a contempt for the oversight powers of the nominally coequal branches. Ironically enough, his nonchalance has made the reality even more plain than it was before: the court will not police itself. The other branches need to show the justices their place.
Moira Donegan is a Guardian US columnist
Roberts’ curt rejection of the committee’s invitation to testify speaks to an evident indifference to ethical standards
tion of the habitable planet, every aspect of our economic lives has to change.
Malm reduces our task to “the struggle against fossil fuels”. But fossil fuels are just one of the drivers of climate breakdown, albeit the largest, and climate breakdown is just one aspect of Earth systems breakdown. You could take out all the obvious targets – pipelines, refineries, coalmines, planes, SUVs – and discover that we are still committed to extinction. For example, even if greenhouse gases from every other sector were eliminated today, by 2100 current models of food production alone would bust the entire carbon budget two or three times over, if we want to avoid more than 1.5C of global heating.
Soil degradation, freshwater depletion, ocean dysbiosis, habitat destruction, pesticides and other synthetic chemicals might each be comparable in scale and impact to climate breakdown. Only one Earth system may need to go down to take others with it, causing cascading collapse. In other words, in this struggle we are contesting not only fossil capital and the governments that support it. We are fighting against all capital and, perhaps, most of the people it employs.
Our demands are – and have to be – more complex than any that have gone before. While I believe that taking out pipelines, refineries, abattoirs, coal plants and SUVs is morally justified, do we really imagine we can bring down the Earth-eating machine this way? Can we really hope that government, industry, oligarchs and those they employ or influence will conclude, “Because we cannot tolerate the sabotage, we will surrender the economic system?” If you are holding a virtual gun to someone’s head, you need to know exactly what you are demanding and whether they can deliver it.
The world has not stood still while we ponder these questions. Governments and corporations are now equipped with greatly increased surveillance and detection powers. If sabotage escalates beyond the mild actions Malm has taken (letting down the tyres of SUVs with mung beans, helping to breach two fences), not many people will get away with it. Some will face decades in prison. Just last week, two climate campaigners in the UK were jailed for between two and three years merely for occupying a bridge. Are we comfortable with goading other people – mostly young people – to step over the brink?
In the US, we see the growing paramilitarisation of politics. It cannot be long before far-right militias there, already committed to armed vigilantism, evolve into death squads on the Colombian model. As soon as they perceive a violent threat to the capital they defend, they will respond with greater violence of their own. Fascism has been famously described as“a counter-revolution against a revolution that never took place”. You don’t have to succeed in generating a new movement committed to a campaign of violence to create a monster much bigger than you are: a monster that will close down the last chance of saving Earth systems. If you are going to take a physical shot at capitalism, you had better not miss.
I cannot say that Malm is wrong, and that non-violent action is more likely to succeed. After all, none of us have been here before. But if you are pushing other people towards decades in prison while risking a backlash that would close down the last possibility of success, you need to be pretty confident that the strategy will work. I have no such confidence.
My own belief is that our best hope is to precipitate a social tipping: widening the concentric circles of those committed to systemic change until a critical threshold is reached, that flips the status quo. Observational and experimental evidence suggests the threshold is roughly 25% of the population. I find it hard to see how this could happen if we simultaneously engage in violent conflict with those we seek to swing. But I concede that our chances are diminishing, regardless of strategy.
In the meantime, I will support people who have already committed coherent and targeted acts of sabotage in defence of the living planet that do not endanger human life. But I won’t encourage anyone to do so, because I’m not prepared to do it myself. This, at least, is one clear line in a world where everything is blurred.
George Monbiot is a Guardian columnist