'The Supreme Court Did This to Itself'
The Supreme Court is on a collision course with itself, and it’s not clear that the justices even know it. We are now witnessing a five-car pileup of Trump–slash–Jan. 6 cases that will either be heard by the Supreme Court or land on their white marble steps in the coming weeks. The court has already agreed to hear the case of Joseph Fischer, the former Pennsylvania cop accused of taking part in the Jan. 6 storming of the Capitol and assaulting police officers, to determine the scope of prosecutions for obstructing an official proceeding. The court’s already flirting with hearing a direct appeal by special counsel Jack Smith to speedily resolve Trump’s claims to absolute immunity for his actions in attempting to overturn the 2020 election. And a game-changer of a case came out of the Colorado Supreme Court on Tuesday that would knock the former president off of the Republican primary ballot in that state as a consequence of his involvement in the insurrection attempt on Jan. 6, which would also critically apply to the general election ballot next November. That ruling has to be settled by the high court in order to forestall, or affirm, other states’ efforts to do the same thing. Potential appeals of gag orders in criminal suits and doofy immunity claims in the E. Jean Carroll suit are all also winging their way to Chief Justice John Roberts’ workstation, and it’s not even 2024 yet.
In the meantime, the justices cannot seem to catch a break when it comes to being caught behaving terribly. In addition to the bottomless evidence of judicial freebies and junkets that were not disclosed by justices bound by both disclosure and recusal rules, the past few weeks have brought bombshell reporting from ProPublica about the ways in which the body meant to police the court was mostly just laying around the henhouse hoping for a good scratch behind the ears.* Then this week, ProPublica produced another in-depth report of how a bunch of millionaires and conservative activists—afraid that Justice Clarence Thomas might leave the court if he didn’t get a pay raise and nice lifestyle perks—conspired to get him pay raises and lifestyle perks. This effort somehow was blessed by (surprise!) members of Congress; the judiciary’s top administrative official, Senate Minority Leader Mitch McConnell; and others who understood perfectly that you needn’t hate the player, or the game, you really just need to take him on island cruises to Indonesia to keep him in the league.
Added to that, there’s the phenomenally reported New York Times story from last week about the ways in which the Supreme Court’s conservative members manipulated and distorted the outcome in the Dobbs case overturning Roe v. Wade in order to try to keep up appearances, even as they phoned in their work on the case to achieve the partisan outcomes for which they were seated. Even if you fully believed all the nonsense about nonbinding ethics codes that are enforced by mindpower, Cool Whip, and promises of good faith, it just isn’t possible to read the stories about 20 years of partisanship, pay-to-play, and the erosion of norms of judicial humility and restraint on the part of the MAGA wing of the court and still feel confident that this is the body to which one wants to entrust the major electoral outcomes of the coming year.
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For years, some of the most vocal critics of the court’s ethical lapses, its lack of transparency, and its refusals to take seriously its own brokenness and errors, have warned that the day would come when an election would be decided by a body that has refused to clean house and has blamed the press and the academy for the stench of its own illegitimacy. The worry wasn’t that the court would decide the election; that seems almost inevitable. The worry was that the public, grown weary of the stench, would not abide by their decision.
Lavish world cruises, secret deals with moneyed donors, threats to step down unless someone ponied up with a pay raise, fishing trips with parties who have business before the court, an amicus brief industrial complex wholly bought and paid for by billionaire donations, leaked drafts, and secret speeches are not the stuff of constitutional democracy, or infallibility, or finality. When the hyperpolitical supercharged Trump cases catch up with the court—and that is beginning to happen, right now, this week—all that stench will run headlong into the questions about why the husband of the woman who went to the pep rally for the insurrection and the folks who lied to us all about Dobbs are objective enough to decide the outcome of an election. The same people entrusted with the protecting the reputation of the court have blundered into being wholly responsible for protecting democracy. Not one thing suggests they will take the latter any more seriously than they took the former.