THE SUPREME COURT PART I
Is it a run-a-way court? What can we do? Is it too late already?
Legal scholars are frightened that the Supreme Court of the United States, (SCOTUS), packed by three Trump appointments, is a run-a-way right wing, destructive, extremist court. Theorists are now considering how we can solve the problem and bring the Court under control and undo some of the havoc it has created or condoned. What havoc are we talking about? Here are some examples.
In the Loper Bright case (Loper Bright Enterprises v. Raimondo Relentless, Inc. vs. Department of Commerce), which reversed the Chevron ruling, our government’s independent agencies which monitor our stock market and regulate our economy, (SEC), inhibit pollution, provide for clean air and water, (EPA), control the healthfulness of food and drugs, (FDA), provide for safety in transportation, (DOT), and airline and airport safety,(FAA), and safety at the workplace, (OSHA),as well as all the other protective government agencies, have been stripped of their power to interpret and enforce the law and make rules and regulations in their areas of expertise. Under the Loper Bright decision, the Chevron doctrine was reversed and now a federal judge, subject to SCOTUS’s review, will be able to, in effect, take their place. This is the tip of the iceberg. A single federal judge will be charged with making decisions of a highly technical nature in these multiple complex areas of our lives. The politically appointed judge will decide what foods and drugs are safe, what vaccines will be allowed and what the clean air and water safety levels are. A single politically appointed judge for life may overrule the specialized federal government agencies. The judge may decide that contraception is dangerous and bar the use of diaphragms, condoms, and next morning after pills. Many of these judges are tilted, carefully vetted reactionary political appointees and were recommended by the extremely conservative Federalist Society. This has the appearance of a power grab by the judiciary from the legislative branch in favor of big business to cut the government’s safety controls and to make larger profits for themselves at the peoples’ expense. Many of the Supreme Court Justices accepted large gifts and treats from the very same persons who would benefit from this decision.
You already know about the Dobbs case (Dobbs vs. Jackson Women’s Health Organization), which reversed Roe v Wade and finds that the Court was wrong in determining that the 14th Amendment protects abortion as a women’s fundamental right. The Dobbs ruling says that the Roe Court was wrong and that the right to an abortion is not protected under the Constitution. It allows the states to make abortions illegal or any attempt to obtain an abortion illegal. This is a political, religious based decision which was apparently predetermined before the Court heard any argument or read any brief. It overruled a decision that had been the established law for over fifty years without any real basis for the reversal other than the political and religious beliefs of a new majority of the Court who had been carefully screened to rule that way as a condition to being nominated.
Rucho vs. Common Cause, 2019, presented the Supreme Court with the opportunity to stop illegal, venal, corrupt, restructuring of congressional districts with the express intent of disenfranchising political opponents and sometimes even allowing a minority to control a majority of voters. This appears to have resulted in the democrats improperly losing about six congressional seats. This is a no brainer. The same problem pervades in State governments and when in power the democrats do not seem to be much different. If democracy is to prevail all gerrymandering must be stopped. However, Chief Justice Roberts doesn’t seem at all upset with the problem which is eating at the core of our government, and which is sponsored and funded by the right wing of the Republican party. This is the same group of people of would-be oligarchs who lavish travel gifts on some of the members of the Supreme Court. These Justices, not surprisingly, joined in this decision. Justice Roberts ruled that gerrymandering claims were beyond the reach of the federal court. Here’s an example, Florida’s 5the Congressional district was eliminated and North Florida’s black citizens were deprived of a congressman by a Republican governor in concert with a Republican State legislature. This has occurred in Georgia, Louisiana, Ohio and Utah. It is claimed that at least six Congressional seats have been stolen which could mean control of the House of Representatives. The improper redistricting mapmaking had been repeatedly corrected by the courts in the past, but Justice Robert’s decision doesn’t think that the American people should be protected in their elections from such blatant fraud which clearly favors the conservative Republicans at the expense of the Democrats.
In Brown vs. Board of Education the Supreme Court, in 1954, unanimously did away with school segregation, but it appears that thirteen thousand American public schools are presently predominantly of one race, with far less funding, inferior facilities and fewer well-trained teachers. We cannot find any effort or ruling by the present Supreme Court enforcing Brown v School Board and requiring integration and equality. Take a look at Milliken vs. Bradley where the Court ruled 5 to 4 in 1974, that it couldn’t force local school boards to participate in desegregation plans unless the districts themselves are responsible for racial discrimination. Thus, it seems to have left the enforcement of the law up to the local communities and school boards who are opposed to compelling integration. The result is that today Black citizens are not equal at all.
In Kennedy v Bremerton School District, the Supreme Court allowed a Christian football coach to pray on the fifty-yard line of the school football field after the game. What about separation of Church and State? What about the Lemon religion in the government test: (Lemon vs. Kurzman, 1971) namely, that an action had to be primarily secular and not religious, that there could be no promotion or inhibition of a religion and that the act would create no excessive entanglement between church and state. There are huge differences in what the facts are in this case. That leads us to question the objectivity of the Court. Justice Gorsuch says in his majority opinion, that the coach “offered his prayers quietly while his students were otherwise occupied.” Justice Gorsuch says that Kennedy was only offering his “thanks through prayer briefly and by himself. “This does not involve leading prayer with the team or before any captive audience.” This is quite different from what Justice Sotomayor, in her dissent, says, namely, “that the coach had a long history of conducting demonstrative prayers on the 50-yard line and consistently invited others to join him and for years led student athletes in prayer at the same time and location.” Somebody is not telling the truth! In reversing the Lemon test Justice Gorsuch made his ruling on what he believed were historical practices and traditions and what he believed the Founding Fathers historically understood. How could he know this? It’s the format for something that is coming. He evidently believes that the Founding Fathers would have no objection to the football coach, on the field of play, as Justice Sotomayer suggests, using his governmental position of power to pressure other people who may be non-believers, to practice his religion on school property. This sounds like Engel v Vitale, 1962, which stopped school sponsored bible reading. If they didn’t pray with coach Kennedy, who sounds quite devout, the students might very well conclude that “you had better pray if you want to play.” This Supreme Court opinion sets the stage for Christianity to be imposed as the official state religion.
Don’t forget American Legion vs. American Humanist Society ,2019, where the lengthy SCOTUS decision written by Justice Alito, found that a forty-foot-high cross on public land, being maintained by the State of Maryland with public funds, was not solely a religious symbol, but had secular meaning and was an historic landmark where people could assemble. “To remove it would be an aggressive strike against religion.” Justice Alito believes that the government should not “roam the land” tearing down monuments with religious symbolism. This follows the theory…” One God: One Country: One Flag.” and next, of course, in an overwhelmingly Christian Country, “One Religion”. These cases set the stage for Christianity to be imposed as the official state religion.
Then there’s Citizen’s United vs Federal Election Commission, 2010, in which decision SCOTUS said that a corporation was a person and had freedom of speech and could give as much as it wanted to any political party or organization and not be restricted in any way. This opened the door for “dark money” contributions from “undisclosed sources” without reporting requirements. Thus, the very rich or large corporations could rig the political system in their favor without anyone knowing who they were. The Court majority stated that they believed that independent spending cannot be corrupt and that the spending would be transparent. Obviously, this was just not true. This was another instance of the ultra-conservative political position of SCOTUS.
Let’s quickly consider Synder vs. U.S., 2024, where Mayor Snyder was paid $13,000.00 by a trash removal company after he ordered the purchase of five of their trucks by the city. We’ll take a better look at it under the “Bribes and Gifts” article of Supportanddefendsociety.com”. Chief Justice Roberts seems to be lecturing us in his opinion. It stands for the rule: If you pay off the official before the questionable act is committed, it’s a bribe, but if you pay after it’s done, then it’s a gift. Do not underestimate Chief Justice Roberts. This naive interpretation seems to be right in line with the Court’s approach to its own ethics.
Finally, in the case of Trump v The United States, Chief Justice Roberts authored the 6-3 opinion, joined by the three Trump appointees, which gives the President absolute immunity for all “official” acts and presumptive immunity for all of his official acts. Theoretically, the president could possibly order a military team to execute his opponents, pardon the killers, and be immune himself. We could find no valid existing legal basis for this landmark decision. In her dissent Justice Sotomayer said that “a president should not be a king above the law” and that “with fear for our democracy, I dissent.” The Court majority knew that this unprecedented and extreme ruling would have the immediate political effect of saving Donald Trump from a criminal trial before the national election. Read all about it in the “Immunity” article at “Supportanddefendsociety.com”. This was yet another instance of the highly questionable and extreme conservative political thinking of SCOTUS.
PART TWO- SUPREME COURT – ETHICS?
What about the present Supreme Court Code of Ethics?
The Chief Justice of the Supreme Court, Mr. John Roberts, has addressed the matter of judicial ethics with a “Statement of The Court”, dated November, 2023, signed by all of the Justices, which appears more to be a lecture to the people about the high integrity of the Supreme Court and the lack of any concern the public should have for the past absence of any written code of ethics. He tells us that the Court’s ethics were always governed by the “common law.” He doesn’t tell us what they were, who interpreted them, how they were enforced or what the punishments were for any violations. Yet, it appears that all the other courts and branches of government, except only the Supreme Court, have always been subject to written rules of ethics.
In the brand-new ethics code prepared by the Court itself, there are no enforcement provisions. There is no method of making complaints or provisions for investigating violations. The code provides that Justices should recuse themselves if the facts have the appearance of impropriety. However, there is a huge loophole! Justices may avoid required recusal if they think that their vote is “needed” in the case! The code leaves the Court to police itself. There is an attempt by the Court to explain and justify this unique avoidance of ethics, but it seems hollow.
Under the new ethics code, it appears that a justice may receive unlimited gifts and unlimited fees for making a speech to a conservative group like the Federalist Society. We could find no limit to the amounts that a justice may receive in entertainment and travel treats, unless it’s from someone who has a case before the Court. Did Justice Thomas report the free VIP sports events tickets that he received. Did he report or repay the $267,000 loan that he accepted in order to buy a RV? Did he report the rent-free arrangement for his mother in a house that was purchased from his family or the tuition that was paid for his nephew? What about the thirty-six destination vacations, the yacht trip in the Bahamas, the twenty-six private jet trips, the eight additional helicopter rides or the other benefits that he received? The total came to over four million dollars from Harlan Crow alone. If Justice Thomas didn’t report it all, then who were the advisors who told him that he was not required to do so? We don’t know, but we should find out. These treats and gifts came from ultra conservative people including the billionaires Harlan Crow, David Sokol, Paul Novelly, and Wayne Huizenga. It’s not hard to understand why they would want to influence or reward the Supreme Court, and they seem to have gotten results.
What is a gift? We’ll help you. A gift is any gratuity, discount, entertainment, hospitality, loan or forbearance or similar item having a monetary value. Certain modest exceptions should be allowed. Congressmen may receive gifts under $50.00 from any one person and no more than $200.00 in any one year. Again, Justice Thomas is said to have received over FOUR MILLION dollars in entertainment travel and gifts from a single person who may have political and possibly an economic interest in matters that may or have come before the Court. Other Justices, it is reported, have received an average of over TWO HUNDRED THOUSAND dollars each in entertainment and gifts over a period of fifteen years. That comes to over thirteen thousand dollars a year! This is clearly wrong!
Have we discussed the Chief Justices’ wife, Jane Sullivan Roberts, who earned over ten million dollars in commissions as a legal recruiter for law firms that appear before the Supreme Court? We tried to learn how she was selected by the law firm of Major, Lindsey and Africa in 2007, coincidently, not long after her husband was appointed Chief Justice, (2005). One would think that being the wife of the Chief Justice had a good bit to do with it. What were her qualifications and training for the recruiter job? She attended Holy Cross College and studied math and engineering. She worked as a systems engineer for Bell Labs. She graduated from Georgetown University Law School and practiced law as a litigator. We can find no record of her having any training or experience as a talent acquisition expert. Although it seems clear that she was paid commissions, the Chief Justice was criticized for reporting her income as a salary. Happily, Mrs. Roberts earned her commissions, not like Hunter Biden, but it still really just doesn’t look right.
What about past recusal? How could Justices Thomas and Alito sit on a case in which Donald Trump is an actual party and which involves presidential immunity when they were appointed by Trump and have Trump activists in their immediate families and fail to distance themselves from these activities and beliefs? Justice Thomas’ wife openly supports the extremist 2020 election denial movement and the invasion of the Capitol building movements. Justice Thomas has never adequately condemned those political extremes or even disassociated himself from these causes. Has Justice Alito ever criticized his wife for flying the Trump political movement symbol of the American flag upside down and the green pine tree (appeal to heaven) flag from his home or even said that was the wrong thing to do? Then they both brazenly voted to find Mr. Trump above the law. Doesn’t the Chief Justice understand that failing to condemn is to condone? All of these “lapses” are not oversights. The Supreme Court Justices are very smart people. Why isn’t recusal required for this type of behavior under the new Ethics Code? Who is responsible for putting in that loophole?
Think again. How is it that Congressmen are ethically restricted from receiving a gift or a meal with a value of over $50.00? Why would we have such restrictions? Are Congressmen’s ethics different from the ethics of Supreme Court Justices? Shouldn’t the Highest Court have the highest ethics? Shouldn’t the Court do everything to assure Americans that they are above reproach and do not have even the slightest appearance of any impropriety? Federal Judges have been counseled that: “It is never inappropriate and frequently prudent to decline a gift or benefit particularly if it appears questionable.”.
Again, under SCOTUS’ new rules of ethics, we could find no provisions for the filing of complaints for violations, no procedure for investigation, no methods of enforcement of violations and no penalties. The new code seemed to be custom made to skip around any improprieties that are going on in the magnificent white marble Supreme courthouse. What kind of self-monitoring is there? Does the Court think that the American people are stupid? Where is the Court’s humility? Chief Justice Roberts started off great by removing the pompous gold Renquist stripes from his judicial robes. However, it seems highly inappropriate that some of the justices who wear those plain black robes, live the lifestyles of billionaires.
Are we experiencing a coup by the Supreme Court?
PART THREE-THE SUPREME COURT – THE SOLUTION
What can we citizens do? Things look quite gloomy for our democracy. It may just be too late for any solution.
Historically, an attempt to tame the Court was considered in the Roosevelt administration back in 1937 when the Supreme Court declared the NIRA (National Industrial Recovery Act) unconstitutional. President Roosevelt put forth legislation to increase the Court by six new members through a plan which allowed the President to appoint one new member for each justice over the age of seventy. This would have increased the number of the Court to fifteen members and eight of them would be friendly to the New Deal legislation. This plan would have required passage by both houses of Congress and presidential signature. Congress did not go along with this plan nor did Justice Brandeis, a liberal, who objected, and the plan collapsed. However, the Court got the message and suddenly the New Deal legislation with which we are all familiar, was found to be constitutional.
The Judiciary Act of 2023 and the Beneficial Limitation Acts sponsored by Congressman Adam Schiff are “pending” in the House of Representatives.
The proposed laws provide for limiting gifts to fifty dollars from any one person and no more than one hundred dollars in any one year.
The proposed law increases the number of Supreme Court Justices by four to make it a court of thirteen judges. This is probably the easiest way to solve the problem.
The new law provides that the Justices must put their assets in a blind trust. This ethical control would be helpful, but Congressmen and even Presidents have found many creative ways of avoiding the effect of such regulation. Some of the Justices wives might not hesitate to become advisors and consultants to the trustee.
Other legislation proposes a stricter set of ethics for the Court with a procedure for complaints, investigation, hearings and punishments.
Additionally, there are provisions for term limits which may be the most practical solution.
Each of these proposals require a majority vote in both the House and the Senate, avoiding a filibuster by Republicans and signature by the President. If either the House or the Senate is controlled by Trump loyalists, it seems highly unlikely that any reform bills will be passed, and they would never be signed during another Trump administration.
What about congressional investigations and ethics committees? They can possibly do more than just investigate and take testimony. Consider this: What does the Constitution say about the term limits of SCOTUS justices? Everyone seems to think that they are appointed for life. Not so! Article III, Section I says that the judges “shall hold their Offices during Good Behavior.” A real ethics code, passed and administered by Congress, with Congressional enforcement provisions, might provide a definition of “Good Behavior.” We know of no statute of limitations relating to ethics that would preclude Congress from revisiting the judicial confirmation procedure testimony. Did any of the Justices misrepresent or lie at any time and violate the constitutional requirement of “good behavior”? Did failure to disavow the inappropriate political activities of their family members while also failing to recuse themselves in the Trump case constitute a breach of “Good Behavior”? Was taking over four million dollars in travel and gifts from one-person “Good Behavior”? Was failing to report gifts and benefits a breach of “Good Behavior”? Did any of the Justices misrepresent in their pre appointment statements that they believed that Roe was the established law and that they would follow it? Was that “Good Behavior”? Did Justice Thomas lie and was Anita Hill telling the truth? What about revisiting that matter and asking Anita Hill to submit to a lie detector test and offering Justice Thomas the same opportunity? Again, we don’t recall ever hearing that there was a time limit on investigating unethical behavior. Can the Supreme Court rule that it would be unconstitutional for Congress to open an inquiry into the Court’s ethics and enjoin such an investigation?
Violating the new ethics code might be punishable by the suspension of the Justice pending a hearing on the charges or for reassignment. There may be no need for impeachment. It occurs to us that the structure of the Court is determined by Congress, possibly solely by the House of Representatives.
What about Congress splitting the Court into two divisions, Division I solely to hear cases involving treaties and admiralty matters involving navigable waters. The other, Division II, would handle “all other matters.” Congress might temporarily or permanently assign offending Justices to Division I. Another way of solving the problem is a determination that all justices over seventy years old would serve in Division I. That would cover Justices Thomas, Alito and the present Chief who turns seventy in early January 2025.
If Congress cannot control the Court internally, they might consider which of the offensive Court decisions might be reversed or revised by new laws or which might require amending the Constitution, which is an extremely difficult and lengthy process. We wish all democracy loving Americans -Good luck!
GOD BLESS OUR WAR HEROES AND GOD BLESS AMERICA!