The Supreme Court: 'Captured and corrupted by money and extremism'

Some Democrats are talking about the Supreme Court, but is there any substance behind their fuss? By Luke Pickrell

Last week, Congressmembers Jamie Raskin and Alexandria Ocasio-Cortez announced a new ethics bill for the Supreme Court, which AOC said is “Captured and corrupted by money and extremism” and “a threat not just to the American way of life and American democracy, but…to our lives.” AOC introduced the new bill after Senate Republicans blocked the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act, sponsored by Rhode Island Democrat Sheldon Whitehouse. Among other provisions, the SCERT Act would have required the Supreme Court to “adopt a code of conduct for Justices and establish procedures to receive and investigate complaints of judicial misconduct; adopt rules governing the disclosure of gifts, travel, and income received by the Justices and law clerks that are at least as rigorous as the House and Senate disclosure rules; and establish procedural rules requiring each party or amicus to disclose any gift, income, or reimbursement provided to Justices.”

Despite holding a majority of seats in the Senate (51 to 49), Democrats are hampered by the lack of a Filibuster-proof majority of 60, as demonstrated most recently by the failure of the Right to Contraception Act in the Senate despite a 51-39 vote in favor of the bill. As I’ve repeated several times, the U.S. is one of only a few countries with a bicameral legislature, one of an even smaller number of countries with a malapportioned upper house, and the only country whose malapportioned upper house wields a minority veto (the Filibuster). This dynamic, where 41 senators representing just 10.7 percent of the population can theoretically veto any bill, makes it nearly impossible to pass contentious bills in the Senate, even if most of the U.S. population clearly leans in one direction. In other words, bills aren’t controversial, and the Senate isn’t at loggerheads because popular opinion is divided but because the Constitution empowers minoritarian perspectives at the expense of the majority.

Overcoming a veto is hard enough. The Democrats made their job even more challenging last week by introducing the SCERT Act with a unanimous consent request, meaning that it took a single dissenter, Republican Lindsey Graham, to stop everything. Graham called the bill an “unconstitutional overreach” that would “undermine the Court’s ability to operate effectively.” Democrat Richard Blumenthal spoke in favor of the act, saying that the Court had “squandered its almost mystical authority, its unique power in the federal government” and that an ethics bill would help rejuvenate the Court’s legitimacy.

The Supreme Court is a blatantly political and overtly corrupt institution. “If you’re a Democrat — or, really, anyone who believes in judicial ethics — it’s hard not to think that Justices Clarence Thomas and Samuel Alito are intentionally mocking you,” wrote Ian Millhiser regarding Thomas’s four million dollars in gifts and Alito’s flying of an insurrectionist flag. More importantly, the Court is an ultra-minority institution regardless of the individuals in robes (though Republicans have been the most recent beneficiaries). As Daniel Lazare explained, five of the current nine justices were nominated by presidents who lost the popular vote, and four were confirmed by senators representing a minority of the population. Popular support for the Supreme Court is at an all-time low since polling began, with 58 percent of respondents in a recent Pew Poll saying they disapprove of how the Court is “handling its job.” 

Introducing the SCERT Act with a unanimous consent request is an attempt to make it seem like the Democrats are putting up a fight without actually doing anything. The Democrats are less concerned about the Supreme Court in general and far more interested in what political party currently benefits from the Court’s “almost mystical authority” — an authority that, as the Pew Poll demonstrates, isn’t as rock-solid as Blumenthal might think. In that sense, Mike Lee’s argument that Democrats are “motivated by having cases before the court and their concerns about the outcomes of those cases” hits home.

Alexandria Ocasio-Cortez could stand on the House floor and remind her audience that the Supreme Court handed George W. Bush the presidency in 2000. She could point out that Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett were all nominated by a president who lost the popular vote, or explain that Clarence Thomas, perhaps the most overtly corrupt Justice, was confirmed in 1991 by 52 senators representing just 48 percent of the population (a fact publicly known since at least 2006 when Sanford Levinson published Our Undemocratic Constitution). That she doesn’t is a conscious decision and surprising given her statement that the Justices’ current misdeeds are a “threat…to the American way of life and American democracy.” AOC, like the Democratic Party as a whole, supports the Constitution and thinks the U.S. is a democracy. In so doing, AOC and the Democrats remain caught within the constitutional bind and perpetuate the “creedal constitutionalism” described by Aziz Rana. 

Discourse in the U.S. around the Supreme Court is tame compared to conversations in Mexico, where 80 percent of respondents in a recent survey said that judicial reform is necessary. Outgoing President Andrés Manuel López Obrador (AMLO) has promised to pursue 20 constitutional amendments before the end of his term, including the abolishment of the current system of presidential nominations and Senate confirmations. Instead, ministers would be directly elected to Court positions. In response to AMLO’s proposed changes, one commentator cited U.S. Supreme Court Chief Justice John Roberts’ absurd claim that judges only call balls and strikes and have no political interests so long as they remain protected from elections. Mexican Justices (called ministers of the court) are far more overtly corrupt than their counterparts in the North. As a result, explained Kurt Hackbarth in a recent interview with the Democratic Consitution Podcast, Mexicans know all too well that the Court is a political instrument open to the highest bidder.

Whatever happens to the U.S. Supreme Court, it’s a safe bet that the Democratic Party won’t lead the charge for fundamental change. As Nancy Pelosi’s response to Aziz Ranan in The New York Times demonstrates, the Democrats’ job is to intervene in political discussions and shore up creedal constitutionalism as needed. Still, words can take on a new life once released into the world; the next time we hear that the Court is “captured and corrupted by money and extremism,” it might be from someone outside the Democratic Party establishment.