The US Supreme Court’s efforts to dodge oversight are the actions of 'monarchs and emperors': attorneys

Alex Henderson, AlterNet
April 27, 2023

US Supreme Court (supreme.justia.com)

The ultimate swing vote on the U.S. Supreme Court used to be Justice Anthony Kennedy, a right-wing libertarian and Ronald Reagan appointee who was fiscally conservative yet socially liberal and often sided with the late Justice Ruth Bader Ginsburg when it came to abortion, gay rights and same-sex marriage. But Kennedy retired in 2018, and these days, the closest thing the High Court has to a swing vote is Chief Justice John Roberts.

Roberts is conservative but not as far to the right as Justice Clarence Thomas, Justice Samuel Alito or Justice Amy Coney Barrett. Regardless, the High Court is way to the right of where it was 20 or 30 years ago, and its image has suffered for a variety of reasons — from the wildly unpopular 2022 ruling in Dobbs v. Jackson Women's Health Organization to efforts by far-right activist and conspiracy theorist Ginni Thomas (Justice Thomas' wife) to overturn the 2020 election results.

ProPublica's recent reporting that Justice Thomas has, for over 20 years, been treated to luxury vacations by billionaire GOP donor Harlan Crow — vacations he failed to report — has only added to public distrust of the High Court.

Critics of the Roberts Court have been arguing that oversight and an official code of ethics are badly needed. But according to Slate reporters Dahlia Lithwick and Mark Joseph Stern — both attorneys — oversight is something that Chief Justice Roberts is trying to avoid.

In an article published by Slate on April 27, Lithwick and Stern note that Senate Judiciary Committee Chairman Dick Durbin (D-Illinois) "invited" Roberts to testify on the High Court and ethics, but Roberts "declined the invitation" in an April 25 letter and argued, "Testimony before the Senate Judiciary Committee by the chief justice of the United States is exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence."

That action, the legal experts lament, speaks volumes about the state of the High Court — which they believe has turned into an "imperial court" that considers itself exempt from oversight.

"The Court pretends — and demands we all pretend — that it's magically purified of politics as soon as its justices are seated," Lithwick and Stern argue. "In reality, it's just a monarchy tricked out as the least dangerous branch, with black robes instead of bejeweled crowns. Indeed, the implicit argument that justices are somehow entitled to live like kings is part of the current ethics problem. For their part, the justices insist that it must ever be thus, not realizing that the only question that matters is whether that willful blindness can be imposed upon the country by fiat. Chief Justice Roberts appears to believe it can."

The reporters/attorneys add, "Perhaps the most depressing part of Roberts' refusal to appear before the Senate is his claim that such appearances should be 'exceedingly rare.' The chief justice himself testified before Congress on ethics reform before…. The fact that the chief justice thinks it's up to him to let us know when it thinks it's having a legitimacy crisis? That’s why it's having a legitimacy crisis. In truth, Roberts probably realizes that the Court's current policy of complete self-policing is indefensible…. These are the ploys of emperors."