Thomas Crow Affair

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Lacking sharp legislative teeth, Democrats are essentially hoping to outsource immediate oversight to the executive and judicial branches—calling for a Justice Department investigation, which it has yet to open. They’ve also demanded that Roberts conduct his own probe, which he has not indicated to Whitehouse he would do. (The Supreme Court did not respond to Vanity Fair’s request for comment.) “The time has come for a new public conversation on ways to restore confidence in the Court’s ethical standards,” Senate Judiciary Committee Chair Dick Durbin said in a Thursday letter, inviting Roberts to answer questions before the committee early next month.

Those hearings could make waves, and pressure from the public could build a groundswell in favor of reform. “That’s not dead in the water,” Jeremy R. Paul, a professor at the Northeastern University School of Law, told me. “I think the possibility of reform is real. [But] I also think the question of what that reform would take is hard to say.”

Whitehouse and his fellow Democrats have already put pen to paper. Back in February, they introduced the Supreme Court Ethics, Recusal, and Transparency Act (SCERT), which would do exactly what the justices themselves have refused to do: establish a process for investigating misconduct and create stronger recusal standards, disclosure rules, and a code of ethics for justices. It’s far from a sure thing, of course, that the measure would garner enough GOP support, given the collective shrug the party has issued in response to the Thomas revelations. Then again, Republican senator Lindsey Graham, the ranking member of the Judiciary Committee, has promoted similar legislation in the past, and his party could be compelled to act as questions about the court’s legitimacy grow louder. “The behavior of these justices is inexcusable…and at some point, they’re gonna have to reconcile themselves with that,” Whitehouse tells me. “You’re not a court just because you wear black robes,” he added. “You’re a court because you behave like a court.”

Passing SCERT would help immediately safeguard against the kind of egregious impropriety Thomas seems to have engaged in, unchecked, for decades. But in the long term, Lipton-Lubet said it will take more than one bill to restore public trust in the integrity and independence of the court. “We can’t lower the bar so low just because the Republican Party has decided that they don’t care about ethics or the rule of law or common decency,” she told me, so “what are the structural reforms that we’re gonna put in place to salvage the court and really save it from itself?”

Here’s a gift article to the Jennifer Rubin at the Washington Post, where she talks about the ridiculous and outrageous dissent from Justic Alito.

Some highlights (but please read the whole thing at the gift link above if you are interested).

Justice Clarence Thomas has gotten the attention of late due to questionable ethics. But it’s high time Justice Samuel A. Alito Jr. received the scrutiny he deserves. Alito’s dissent in the mifepristone case has served up yet another example of his intemperate, partisan rhetoric.

In the rush to celebrate the failure of medical zealots (this time) to dredge up an antiabortion activist in robes to countermand the FDA, Alito’s dissent shouldn’t be ignored, for it perfectly encapsulates the degree to which he’s become “unmoored from reason,” as legal scholar Norman Eisen tells me.

The opinion is so lacking in judicial reason and tone that Supreme Court advocates and constitutional experts with whom I spoke were practically slack-jawed. They cite a batch of objectionable arguments and remarks in his dissent.

It’s entirely irrelevant to the matter at hand and, as with so much of Alito’s writing, utterly intemperate.

But it gets much worse. Alito has the temerity to assert that there would be no irreparable injury in denying the stay because “the Government has not dispelled legitimate doubts” — by whom? where does this standard come from? — “that it would even obey an unfavorable order in these cases, much less that it would choose to take enforcement actions to which it has strong objections.” This unprecedented attack on the government’s obedience to court rulings — based on nothing — is out of order. There is zero evidence — stray pundits and legislative backbenchers don’t count — that the Biden administration would essentially put itself in contempt of court.

Moreover, Alito’s dissent demonstrates that he does not care one whit about the women affected if the drug were suddenly made unavailable. (At least he’s consistent; he also utterly ignored the interests of women in Dobbs v. Jackson Women’s Health Organization, giving them no weight in contrast to the seemingly inviolate interest of states in commandeering women’s reproductive choices.) Their irreparable harm doesn’t register.

Next, consider Alito’s hypocrisy in accusing the government of “leveraging” (i.e., judge shopping) by going to a court in the 9th Circuit to obtain a contrary opinion, thereby setting up a conflict between circuits. It takes some nerve to make that accusation, given how the case began when antiabortion activists searched out a single-district division in Amarillo, Tex., where they were certain to draw a judge who embraces their cause.

Finally, Alito dishonestly asserts that a stay isn’t needed because this will all get decided quickly at the 5th Circuit or at the Supreme Court — probably in the government’s favor. (“Because the applicants’ Fifth Circuit appeal has been put on a fast track, with oral argument scheduled to take place in 26 days, there is reason to believe that they would get the relief they now seek — from either the Court of Appeals or this Court — in the near future if their arguments on the merits are persuasive.”)

Open thread.