Mitch McConnell knows a lot about the United States Supreme Court. As well he should.
The former Senate Republican majority leader brought us today’s conservative majority court, working in lockstep with the judge-vetting Federalist Society’s indefatigable Leonard Leo.
That the taciturn McConnell recently troubled himself to defend the court in print confirms how serious the crisis of public confidence in this court has become.
The new conservative majority remains “ideologically unpredictable,” McConnell assured us. “It’s doing exactly what it’s supposed to do.”
True enough — if you mean to impose minority rule on the majority by eviscerating settled law.
Everything conservatives wanted when John G. Roberts Jr., became chief justice in 2005 — re-criminalize abortion, declare private gun ownership a constitutional right, elevate the role of religion in law, abolish affirmative action and weaken the power of federal agencies to regulate business — was achieved by June 30, notes New York Times columnist Linda Greenhouse.
Moreover, this court shrugs off judicial behavior that reads distressingly like the definition of graft. And that gravely threatens its legitimacy.
It has no formal ethics code and Roberts refuses to explain to Congress how it polices itself. Can this court’s efforts to avoid corruption not stand up to public scrutiny? Hello?
Its imperiousness has re-ignited efforts to expand the court and end lifetime terms.
If the public perceives a court in crisis, McConnell must blame himself. He flipped it to a conservative majority by underhanded means.
McConnell famously refused to let the Senate vote on President Obama’s nomination of Merrick Garland to replace Antonin Scalia, who died in February 2016.
Obama nominated Garland that March.
But McConnell decreed that March was too close to November’s presidential election. It was unfair to deny voters a say in who the next justice should be, McConnell proclaimed. Obama’s rightful pick went to Donald Trump, who gave us the Federalist Society’s pick, Neil Gorsuch.
But McConnell changed his rule in 2020, when Ruth Bader Ginsburg died that September.
By then McConnell had lost interest in the will of voters. The Federalist’s pick, Amy Coney Barrett, was confirmed roughly two weeks before the election of Joe Biden. Under McConnell’s own previous rule, Biden should have made that pick.
Creating mistrust
McConnell’s brazen chicanery sabotaged public perception of the court’s integrity and its moral authority. Americans like fair play.
This court unwisely courts public mistrust with its frequent use of an unsigned, unexplained “shadow docket” to conduct the public’s business and by changing rules governing who has legal standing to sue.
It stripped consumer protections from sexual minorities when it ruled in favor of a Colorado website designer who claimed religious harm from laws requiring her to provide wedding services to gay couples.
Remarkably, the plaintiff brought the court no proof of actual harm; she had never offered her wedding services to the public. No matter. Conservatives wanted to rule on this procedurally flawed case badly enough to abandon both settled law and common sense to hear it.
Brought by a right-wing Christian group, Alliance Defending Freedom, this case was meant to establish a constitutional right for “Christian” business owners to discriminate against customers whose private lives don’t conform to plaintiffs’ religious beliefs.
“Today, the court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class,” warned three dissenting justices.
Who’s next?
And the stench of corruption?
“What has gone wrong with the Supreme Court’s sense of smell?” asked federal judge Michael Ponsor in response to reports that justices Clarence Thomas and Samuel A. Alito Jr. accepted unreported, lavish gifts from wealthy people, Sonia Sotomayer engaged in ethically questionable book promotions, Gorsuch failed to report the name of the buyer in a sale of real estate. “Justices must have functioning noses.”
But Alito’s nose failed him. He denied that there could be any “appearance of impropriety” in his acceptance, and failure to disclose, travel to an Alaska fishing vacation on a private jet owned by billionaire investor Paul Singer, who later brought business before the court.
Ironically, Alito himself inadvertently made the case for why he should have refused the gift. He did not recuse himself because Singer’s name was not revealed as party in the court filings.
“It would be utterly impossible,” Alito wrote, for the court to unearth the names of all individuals holding financial interests in the thousands of cases brought to the court each year.
Which is why justices must not accept freebies from billionaires — or paupers.
It’s a really bad look when the nation’s most powerful deciders secretly accept valuable gifts involving real estate, travel, expensive vacations and private school tuition from other powerful people who may appear before the court.
Among Thomas’s many unexplained ethics issues are donations of unspecified sums labeled “Christmas party” from lawyers who argue before the court and failure to recuse himself when the court ruled on a case advocated by his wife, Ginny — to whom Leo reportedly steered thousands of dollars in consulting fees.
Thomas and Alito seem especially blind to the fact that mere appearance of corruption damages the court’s credibility.
We expect justices’ behavior to remain above suspicion. They owe us probity; they have lifetime tenure on our dime.
Ultimately, the Supreme Court’s authority rests not on whether We the People agree with all its rulings. It’s whether we trust its justices.
Solveig Torvik lives near Winthrop.
