The Corruption of Supreme Court Conservatives

The Court's falling approval is worsened by conservative Justices' blatant partisanship

The current Supreme Court is undeserving of respect. 

Many of its decisions are untethered from any form of recognizable jurisprudence, and the contempt of conservative Justices for precedent is incomprehensible. The collapse of public approval for the Court - dismissed in arrogance by people like Justices John Roberts and Samuel Alito - has nothing to do with disagreeing with “objective” decisions. Rather, it is a wide recognition that justices like Alito and Clarence Thomas consider themselves no different than lifetime senators, and don’t even bother to hide it.

Less than a decade ago, I could not imagine having typed the previous paragraph. From the time I was in college, I revered the Supreme Court as one of the world’s greatest bastions of intellectual engagement, with intellectual powerhouses wrestling with the complex intertwining of facts, legislation, the Constitution, and precedent. But as the time passed, my beloved Court began to deteriorate until it became obvious that it was not “calling balls and strikes” as Roberts famously said. The concept of an apolitical Court — carefully interpreting laws, the Constitution and precedent with little thought of policy preferences—had died. What we have instead are unelected super-legislators clothed in black robes who do handsprings to approve—or shoot down—public policy based on their political beliefs.

And the conservatives on the Court don’t even have the shame - or respect for the American people - to refrain from thumbing their noses at all of us by declaring their partisanship with the subtlety of exploding dynamite.

Just take one factoid: The news that Justice Brett Kavanaugh headed to Alexandria last Friday to attend a Christmas party at the home of Matt Schlapp, chairman of the American Conservative Union and right-wing lobbyist. Schlapp was as high profile as they come in the conservative movement, an election denier who screamed voter fraud before the ballots were finished being counted in the 2020 election. He declared Black Lives Matters was "...hostile to families, capitalism, cops, unborn life and gender." He has been at the forefront at endless number of conservative conspiracy theories and lies.

The gall of Kavanaugh’s willingness to hobnob with the glitterati of conservative politics came the very same day that a former leader of the country’s anti-abortion movement testified in Congress about improper interactions between Alito, Thomas, his group’s supporters, and him. The Rev. Rob Schenck testified he had headed a surreptitious campaign, called Operation High Court, to lobby conservative justices on a 2014 landmark case involving contraception and religious rights., Burwell v. Hobby Lobby. Schenck testified that he and a handful of like-minded advocates knew the ruling in advance, after it was shared with them by a conservative Justice. “I believe we pushed the boundaries of Christian ethics and compromised the high court’s promise to administer equal justices,” Schenck said of his campaign at the court. 

The Democrats had called the hearing to discuss the adoption of ethics rules for Supreme Court Justices that match those applied to every other part of the judiciary. That’s right - an appeals court judge right below the Supreme Court could be sanctioned for having attended that party, but no ethics rules exist for the Justices of the Supreme Court. They can do pretty much whatever they want. The Republicans reacted to this hearing to discuss whether to have ethics rules for Supreme Court Justices as an attack on conservatives. That’s right - ethics rules are attacks on conservatives.

Imagine what it took for Kavanaugh to know of this controversy taking place on Capitol Hill, a walking distance from his chambers, and then throwing on his coat, heading out to his car, and showing the exact type of contempt for portraying objectivity that was the topic of the hearing. 

No surprise though, because the conservative Justices have become all but head of fundraising for Republican presidential nominees. Alito is the worst: Not only does he speak at fundraisers for conservative organizations, but he condemns policies, some of which were before the Court and others that were not yet. This is the same guy who, when testifying at his confirmation hearing, oozed that he could not discuss his positions on any case because it might undermine his appearance of objectivity. Such rules apparently no longer applied once he received his lifetime appointment. 

In a 2020 speech before the Federalist Society - the conservative organization that has played the biggest role of any in placing like-minded jurists on the Court - Alito said in his speech, “We have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020…The covid crisis has served as sort of a constitutional stress test.” What the hell was this man doing discussing policy questions in front of a group of partisans? Just proving why the public hates the Court. Before slithering off the stage, recognizing how he was attacking policy, Alito disingenuously said, “I’m a judge, not a policymaker.” This would be like Jeffrey Dahmer proclaiming, “I’m a candy maker, not a murderer.” 

Alito has been doing this for more than a decade. In 2008, Alito headlined the annual fundraising gala for the American Spectator, helping to raise tens of thousands of dollars for the conservative magazine as he hobnobbed with the glitterati of the Republican Party. According to Jay Homnick, a conservative who attended the 2008 Spectator gala, Alito spent much of his speech ripping then Vice President-elect Joe Biden as a serial plagiarizer. Yes, not only was Alito raising money for a political organization, but he was throwing political red meat to attendants by attacking the current Vice President by using Fox News talking points.

It doesn’t stop there. Alito appeared at the 2010 Spectator fundraiser as well. (When asked by a reporter as why he thought it appropriate to attend a highly political fundraiser with the chairman of the Republican Party, Alito appeared baffled, and replied, “It’s not important that I’m here.” This is the kind of assertion of fact and degradation of others’ opinions that underscore the sophistry of many of Alito’s decisions. 

That same year, Scalia and Thomas had a meeting with GOP officials arranged by the billionaire Koch brothers, the kings of Republican political contributions. On the invitation to the meeting declaring the gathering to be an opportunity "to review strategies for combating the multitude of public policies that threaten to destroy America as we know it." Why were Scalia and Thomas at the non-public event. I’m sure Scalia would answer, “Not important.”

This same kind of trafficking in Republican politics by the conservative justices is a feature, not a bug, of the court’s current right-wing. And don’t even get me started with Thomas sitting on a case about releasing the text messages of former White House Chief of Staff Mark Meadows for investigations into the January 6 attack. Thomas had to have known that among the texts included in that assortment were a number from his wife Ginny, who is also a conservative political activist and conspiracy theorist. But Thomas did not recuse himself, and was the lone vote in calling for the subpoena of Meadows’ texts to be quashed. (You have absolutely no doubt his decision would have been the opposite had this been a subpoena for the Chief of Staff of a Democratic president.)

Now, to be fair, I decided to check the speeches of the most liberal member of the Court, Sonia Sotomayor. Yup, she gave some - one about life on the Supreme Court to the American Constitution Society (no policies mentioned); commencement addresses to Manhattan College and New York University; one at the Library of Congress for the Supreme Court Fellows Program; one at the Hispanic Heritage Awards (established by The Reagan White House in 1987; and a few other nonpartisan educational forums. No fundraisers for The Nation magazine, no hanging out at parties with the head of the American Civil Liberties Union, no meeting with Democrats arranged by George Soros. Nothing. She has ethics.

Perhaps this conservative partisanship would be fine if it didn't also show up in their rulings. There have been times when the court upheld policies I support with what I considered absurd decisions, and times it knocked them down with rulings that seemed reasonable. For example, while I am a fierce advocate for personal privacy, I thought the constitutional pretzels the court turned itself into with Griswold v. Connecticut (which in 1965 prohibited states from restricting the purchase of contraception) were obvious. Justice Potter Stewart had it about right in his dissent when he labeled the Connecticut statute "an uncommonly silly law" but constitutional nonetheless. There have also been times when a well-reasoned ruling went counter to the outcome I wanted, but I understood that the Supreme Court was supposed to be policy-neutral, an ideal reflected in Stewart's comment in Griswold. Yet, in the years since Griswold, the standard of a Constitutional right to privacy has been engrained into the law by scores of precedents, meaning that the issue is not up for debate anymore without a reckless overturning of the decisions of innumerable past Justices.

Of course, Alito, Thomas and all the other members of the conservative clown car were perfectly happy to ignore precedent when it came to overturning Roe v. Wade and innumerable other rulings that embedded the woman’s right to self-autonomy in pregnancy into our Constitutional jurisprudence. No matter. The Republican National Committee opposed abortion, so Alito and company tossed it out in Dobbs v. Jackson Women's Health Organization, precedent be damned. Some conservatives obscenely liken this to the overruling of the Dred Scott decision, which found that no other person of African ancestry could claim citizenship in the United States. This obscene comparison failed to admit that Dobbs was the first time in the history of this country that the Court tossed out innumerable precedents to take away a right recognized by previous courts. 

The conservatives were well prepared to throw out Roe, having spent more than a decade overturning precedents, each time obscenely saying “Oh, but what about Dred Scott?” Their practice of turning the court into the GOP platform began more than a decade before. Start with Citizens United v. Federal Elections Commission, the 2010 case that awarded constitutional rights to corporations and held that they could not be limited in how much they could spend to influence an election. This decision transformed our electoral process into a plaything for billionaires and has done more to undermine democracy than virtually any ruling in history.

Chief Justice John Roberts attempted to excuse the inexcusable by feebly rationalizing why this was not an exercise in judicial activism. The court was undoubtedly ruling against precedent, contrary to "stare decisis"—once the near-inviolate standard that courts should respect prior rulings. Oh no, no, Roberts opined: Courts were required to overrule precedent in extreme situations. Yes, making sure corporations get constitutional rights is on par with overruling Plessy v. Ferguson, the 1896 case upholding segregation. It's amazing that granting corporate constitutional rights was so clearly the intent of the Founders when neither they nor hundreds of justices over more than two centuries saw it until Roberts and his pals came along.

The next troubling ruling was in National Federation of Independent Business v. Sebelius, which upheld Obamacare and outraged conservatives. Many of the arguments from the conservative judges—both in opposition and in support of the majority ruling—made no sense. Justice Antonin Scalia was the king of inconsistency, turning upside down his interpretation of a prior case. Roberts's opinion was a train wreck, made even messier by his efforts to sidestep precedents once again. Then there was the portion of the decision that declared Congress—despite its authority under the Constitution's Spending Clause—could not require states to expand Medicaid eligibility to qualify for future grants. The reasoning was complicated, but the arguments by the conservative members of the court will come up again in ways they won't like—and then they will probably ignore the precedent they have set.

Next up, the decision that was the subject of partisan lobbying of the Court and the subsequent passing of advance notice to like-minded conservatives, Hobby Lobby. The court's decision has so much dancing around reason and law that it would shame the Bolshoi Ballet.

Hobby Lobby—an arts and crafts store founded by self-made billionaire David Green—objected under what it claimed were religious grounds to Obamacare rules that required employer-sponsored insurance plans to cover the cost of 20 types of contraceptives. Note that until 2012—the year the company filed suit—Hobby Lobby had offered insurance that covered the very types of contraception its owners suddenly found so objectionable.

Enter the Alito circus. The majority decision rightfully concluded that corporations do not have a constitutional right to ignore laws based on religious convictions—imagine the chaos otherwise. Instead, Alito relied on the Religious Freedom Restoration Act, a 1993 law that requires strict scrutiny when a generally applicable statute "substantially burden[s] a person's exercise of religion." Note the word "person."

Although at no point did Congress suggest that the "person" referenced there could be a corporation, Alito decided that's what the legislators meant, latching on to an 1871 law called the Dictionary Act, which courts have often viewed as a tool of last resort, as justification.

Virtually crafting his own laws, Alito declared that rights under the law apply only to "closely held corporations"—a term he doesn't bother to define. It would be as if Alito ruled that cases involving the rights of certain people required strict scrutiny, but then refused to say what kinds of people he was talking about. Under definitions by the Internal Revenue Service, a closely held corporation means one with five or fewer owners. Is that what Alito meant? Who knows? In the end, he granted religious freedom to types of corporations that perhaps he will define later.

Now, we need to delve into how unusual this “precedent be damned” outcome of the Roberts Court has been. Of the more than 25,500 decisions handed down by the Supreme Court since its creation in 1789, it has only reversed course 146 times, less than one-half of one percent. Yet…almost 25 of those reversals have come in the Roberts Court - or one-in-five of the cases overruling precedent in the past 233 years. That means the Court overturned precedent about once every two years prior to the Roberts Court. Then, the reversals skyrocketed to once every eight months.

Roberts is one of only two justices since 1946 to support 100% of decisions overturning precedent that led to conservative outcomes. His record in precedent-overturning cases is the second-most conservative among 37 justices who have ruled in at least 5 precedent-overturning cases since 1946. With 84% conservative votes in precedent-reversing cases, Roberts only trails Justice Alito’s 88%. He is the second-most frequent member of the majority in precedent-overturning cases. Only Justice Thomas has been a more frequent member of the majority in such cases at 90%.

Not all absurdities that are rubber-stamping GOP political positions have come from reversing precedent. Some just involve irrational refusals to abide by lower court decisions without ruling on them. Best example: the court's action in a 2014 Ohio voting case. Ohio has long been at the forefront of a campaign by Republican-led states to keep the poor, students and other citizens who are more likely to vote Democratic from being able to cast a ballot (an effort made all the easier by the court's decision to gut the Voting Rights Act just ‘cause). The 2014 campaign aimed to cut back on early voting, particularly on Sundays.

A 2012 report in The Palm Beach Post quoted former GOP officeholders and strategists who said that once the party realized how many Democratic voters were turning up at the polls because of the longer schedules, Republicans wrote legislation to cut them back. In particular, they wanted to limit Sunday voting, which is used by black churches to organize buses and carpools to bring parishioners to the polls. "I know that the cutting out of the Sunday before Election Day was one of their targets only because that's a big day when the black churches organize themselves," one GOP consultant told the Post.

Ohio's Republican secretary of state, Jon Husted, implemented every rule imaginable to impede the voting of people not like him. He issued rules for primary and general elections that excluded early voting hours for the Sunday immediately preceding Election Day. Obviously, it is just a strange and amazing coincidence that this is what the Republican operative told the Post was a tactic designed to minimize the black vote. The schedule for early voting allowed by Husted was so convoluted it took a court 10 lines of type in a paragraph to describe them.

The court knocked down that Rube Goldberg attempt, so Husted issued a directive setting uniform early voting hours, even though no statute requires this and local election boards, by law, set their own times of operation. Once again, Husted eliminated those times when black voters historically showed up in the largest numbers. Barred by permanent injunction from stopping voting on the Sunday before the election, Husted did the next best thing: He shut down the polls on every other Sunday. He also eliminated something called the Golden Week when a citizen could register to vote and cast a ballot on the same day.

Seven plaintiffs sued in federal court, where their case was heard by U.S. District Senior Judge Peter C. Economus, who filed a 71-page opinion. The decision enjoined Husted from "capriciously" changing the schedules in ways that Economus found burdened "the right to vote of certain groups of voters"—specifically, minorities and the poor. Sunday voting, Economus found, was relied upon by many black citizens because of the church-organized transportation through a system nicknamed "Souls to the Polls."

Economus was particularly strong on the issue of the Golden Week. He wrote that "the opportunity to register and vote at the same time during Golden Week is more than a mere convenience to poorer individuals and the homeless, it can make the difference between being able to exercise the fundamental right to vote and not being able to do so. Accordingly, the elimination of Golden Week burdens the right to vote."

Sixteen hours before Golden Week was scheduled to begin, without holding a hearing or reading a brief, the then-five conservative justices on the Supreme Court came trouncing in, placing a hold on Economus's injunction. Golden Week was stopped in its tracks. For what may be the first time in generations, Supreme Court Justices stood in front of the polling places and told voters—mostly minorities, most likely Democrats—to stay home.

The Supreme Court declared that the decision to block scheduling rules issued by a man whose motives are deeply suspect raised such troubling concerns that it urgently needed to force the very action that the lower court found would impede the voting of the poor and minorities. And the justices did it without a hearing, without a ruling, without a brief, without evidence.

Now, the Court has taken up a case that is beyond belief, and may well throw out democracy before their term is up. This comes in the case of Moore v. Harper, involving North Carolina’s congressional map. The issue involves a fringe, lunatic idea called the “independent state legislature” theory, which argues that an interpretation of a clause in the U.S. Constitution leaves little — or no — room for state court review of election laws. The idea is pushed by conservatives eager to tear down the America that has existed throughout our country’s history by simply surrendering federal elections to state legislators. Gerrymanders now considered illegal could be legalized, voting rules to block certain categories of people from voting could be allowed, and if all of that isn’t enough, legislatures could throw out the results of an election, with no state court allowed to review their actions.

This idea has received universal condemnation from legal scholars on both the left and the right as being fundamentally at odds with the Constitution and American history. The only supporters have been conservative political organizations that see an opportunity to impose the autocracy they so desperately crave. Observers of the Court believe that the hearing on the case showed it was not going to accept the theory. But that is almost besides the point: A loony idea like this should never have even come to the Court, which only hears a small number of cases each year. And the fact that we are unsure how they will rule underscores how illegitimate this Court is.

So, now you have conservative Justices whining about how the public doesn’t respect them anymore, and it’s all because they are bound to settle on their “objective” rulings that the public might not support, but that the Constitution requires - while almost always in line with the Republican platform. In fact, at some point I would love for a reporter to ask the conservative Justices two things: When have you ever given a speech to a non-partisan group? And how many of your rulings on social or political issues have contradicted the position of the Republic Party?

They won’t answer. “Not important",” I’m sure snakes like Alito will say. So go ahead, conservatives. Abuse your position, raise money at conservative fundraisers, reverse precedents at a rate unheard of at any time in this country’s history - always in line with GOP policies, and ignore all respect for the far-greater justices who came before you deserve. Go ahead and turn the Court into the policy committee of the Republican Party.

But don’t you dare whine about no one respecting you. You don’t deserve it. You are an abomination and do violence to the Court’s reputation every time you take the bench.