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The High Court's Supremely Unethical Activists

Scalia, Alito and Thomas favor their right-wing friends

Apr. 9, 2012
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How the Supreme Court majority will rule on President Obama's Affordable Care Act may well have been foretold months or perhaps years ago—not by their questions during argument this week, but rather by their flagrant displays of bias outside the court, where certain justices regularly behave as dubiously as any sleazy officeholder.

While the public awaits the high court's judgment on the constitutionality of health care reform, it is worth remembering how cheaply Justices Antonin Scalia and Clarence Thomas in particular have sullied the integrity of their lifetime appointments, and how casually Chief Justice John Roberts and their other colleagues tolerate such outrages.

The most scandalous aspects of Washington, as a wise pundit once suggested, are the things politicians do that are perfectly legal but shouldn't be—an observation that applies with particular force to the Supreme Court, which is not subject to the ethics restrictions applied to lesser judges on the federal bench. That was why Scalia and Thomas, for instance, could appear as guests of honor at a fund-raising dinner for the right-wing Federalist Society—which was sponsored by Bancroft PLLC, a major firm involved in litigation against the Affordable Care Act—on the very same day last November that they reviewed an appeal brief on the case from Paul Clement, the Bancroft attorney whose arguments they received so cordially this week.

In fact, Clement sat at a table "sandwiched between" the two justices. Scalia was seated with Senate Minority Leader Mitch McConnell, who had told the Federalists that he would rely on them to help undo the "affront" represented by health care reform. And for good measure, Justice Samuel Alito enjoyed the event at another table nearby.

Chief Justice Looks the Other Way

If they were mere federal district or appeals judges, neither Scalia nor Thomas would have been permitted to attend the Federalist celebration, while Alito's attendance would have been questionable, to say the least. But members of the right-wing majority readily abuse their immunity from ethics regulations. Poised to reject the Affordable Care Act with the kind of sweeping opinion that could tear down decades of commerce clause jurisprudence, they merit sharp scrutiny of their motives and conduct—scrutiny that they have largely escaped until now, even as they drift further and further toward the corporate right.

Investigative reports have revealed partisan and ideological ties that the justices themselves have sought to conceal, dating back to Scalia's duck-hunting trip with then-Vice President Dick Cheney, who had pending before the court a lawsuit challenging the secrecy of his Energy Task Force. No federal judge would have dared to rule in such circumstances, but Scalia dismissed the obvious appearance of conflict with an unbecoming sneer.

As Scott Horton reported in Harper's magazine, Scalia's duck-hunting patrons in Mississippi had brought other vital matters before him to get their way, again in a manner that any self-respecting ethical jurist would instinctively abhor.

More recently, Scalia and Thomas were used as celebrity bait by the ultra-right Koch brothers, David and Charles, to draw well-heeled supporters to a secretive conference on undermining the Obama administration at a fancy Western resort. It would be hard to imagine any activity less appropriate for a Supreme Court justice, unless it was Thomas' wife, Ginni, accepting huge payments from a tea party organization devoted to the repeal of health care reform, which she did in 2010. The justices failed to report any of these screaming conflicts on their disclosure reports, compounding the offense with the cover-up.

On several occasions, Alito has likewise ignored the federal judicial ethics rule against political fund-raising, including at least two events to raise money for the far-right American Spectator magazine and for the Intercollegiate Studies Institute, the original sponsors of dirty trickster James O'Keefe. It is strange to see a Supreme Court justice associating with such gamy ideological enterprises—and even more surprising to learn that Alito gave a blazing, partisan keynote address at a Spectator dinner during which he denounced Vice President Joe Biden in highly personal terms. When ThinkProgress reporter Lee Fang approached Alito to ask about his role as a right-wing fund-raiser, Alito snapped that it "isn't important," and his bodyguards threatened to arrest Fang.

The right-wing bloc's cynical attitude toward judicial corruption was expressed most succinctly by Chief Justice Roberts in his opinion upholding a West Virginia judge who had failed to recuse himself from a major case involving the A.T. Massey Coal Co. Roberts could see nothing wrong with the judge's conduct—even though Don Blankenship, Massey's CEO and principal owner, had donated $3 million to the judge's re-election campaign. That was too much even for Justice Anthony Kennedy—himself a former lobbyist and the son of a lobbyist—who voted with the court's liberal justices to uphold the constitutional right to adjudication by a magistrate unimpaired by the blatant appearance of favoritism.

Now it will be up to Justice Kennedy to step up in defense of honest, true conservatism—against the right-wing judicial activism that would vacate decades of commerce clause jurisprudence for a partisan objective, and against the corrupting political misconduct of Thomas, Scalia and Alito—by joining a majority to uphold the Affordable Care Act. By doing so, he might begin to dispel the partisan taint that has afflicted the court since Bush v. Gore in 2000—the decision that eventually brought Roberts and Alito onto the court to form their abusive majority.

© 2012 Creators.com


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