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The High Court's Supremely Unethical Activists

Comment

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 so much by their questions during argument this week, as 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.

What is most scandalous in 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 fundraising 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.

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 abuse their immunity from ethics regulation without sanction. Poised to reject the Affordable Care Act with the kind of sweeping opinion that could tear down decades of Commerce Clause jurisprudence, they merit the sharp scrutiny of their motives and conduct 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 Harpers 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 Ginny accepting huge payments from a tea party organization devoted to 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 coverup.

Alito has likewise ignored the federal judicial ethics rule against political fundraising on several occasions, 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 video 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 where 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 fundraiser, he 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 Company. 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.

Joe Conason is the editor in chief of NationalMemo.com. To find out more about Joe Conason, visit the Creators Syndicate website at www.creators.com.

COPYRIGHT 2012 CREATORS.COM



Comments

11 Comments | Post Comment
Mr. Conason, you've revealed many startling facts about these judges which I was unaware. I back checked your cited sources to find the accusations are true. When measured with some of their rulings things start to make sense. To fear they may be corrupt, then to reveal actions indicating they are corrupt, President Obama's message to them now makes perfect sense. Their actions are contemptible and their betrayal of our trust to objectively decide matters of such supreme importance to our country is beyond measure and reinforces fears from both conservatives and liberals that there is no one representing our interests.
Comment: #1
Posted by: Steve
Wed Apr 4, 2012 8:28 PM
Oh. My. God.

The conservative-leaning members of the Court support conservative causes.

I never would have guessed.

I'm sure you see no problem with Kagan failing to recuse herself from the case, though. Never mind the fact that she was heavily involved in crafting Obamacare when she worked in the Obama administration.

As for your horror at the idea of overturning several decades of left-wing overreach via the Commerce Clause, all I can say is "It's about time."
Comment: #2
Posted by: Jeff Gunn
Wed Apr 4, 2012 9:58 PM
Re: Jeff Gunn Excellent post. You beat me to it. Joe can find no wrong in anything that Democrats, socialists, communists and other left-wing factions. Joe only hates anyone who disagrees with him.He is an unethical as one can get and has the gall to cast aspersions on the ethical behavior of others - even if he has to lie to do it.
Comment: #3
Posted by: David Henricks
Thu Apr 5, 2012 1:02 AM
The unemployed and also destitute are the ones that really need affordable medical care which can be incorporated into current Medicaid and Medicare updated laws. Working citizens should have a right to choose whether they want medical insurance or not and should not be forced to buy medical insurance and fund a corrupt and severely costly almost 3000 page Obamacare socialized medical coverage package.
Comment: #4
Posted by: Uldis Sprogis
Thu Apr 5, 2012 3:47 AM
As always, excellent reporting and analysis.
Comment: #5
Posted by: Jane
Thu Apr 5, 2012 4:33 AM
Thanks again for that Bush V. Gore decision. It's enriched our lives in so many ways.
Comment: #6
Posted by: Bruce Strickland
Thu Apr 5, 2012 5:20 AM
"where certain justices regularly behave as dubiously as any sleazy officeholder". So even this big time liberal admits that elected officals are corrupt, yet he always clamors for more government run by those same sleazy people. Bigger government lets in more room for corruption.
Comment: #7
Posted by: Chris McCoy
Thu Apr 5, 2012 9:33 AM
Absent in your piece was any mention of Elena Kahan's ethically challenged behavior. She is now hearing a case she built the defense for. This would seem a far more agregious violation to me. I guess ethics only matter when you disagree with a person's politics. This is the work of a political hack. You are better than that, I hope. I await your Elena Kagan column, though I will not hold my breath. I want to live to see this abomination struck down.
Comment: #8
Posted by: Ethan Roninson
Thu Apr 12, 2012 10:31 AM
Apologies to Kagan for the mispelli, damn touchscreen
Comment: #9
Posted by: Ethan Roninson
Thu Apr 12, 2012 10:48 AM
It is frustrating for any liberal to be stuck with Justices who wish to actually follow the Constitution of the United States. A much better path for them would be to destroy the Constitution. Just ask Justice Ruth Bader Ginsburg what she meant when she said "I would not look to the U.S. Constitution, if I were drafting a Constitution in the year 2012. I might look at the Constitution of South Africa".

Focusing on the conservative justices, while completely ignoring the liberal justices with similar issues, is poor journalism and something that Joe Conason should be ashamed of. This is what is causing America to be so divided instead of united.
Comment: #10
Posted by: MadIdahoMan
Sat Apr 14, 2012 7:39 AM
Citizens United is a travesty for our elections in this country but once again the conservative justices are helping steer the country further right. Can you honestly say the Bush/Cheney vote was best for the country after all the corruption that has been uncovered? Their spending alone on the Iraq/Afghanistan wars led to our economy almost spinning out of control! Sadly, these justices have unabated power and will always support the GOP. Obama did not stand a chance from day one, as the GOP planned to attack and obstruct him wherever possible, and have blatantly done so, resulting in a much slower recovery and unnecessary suffering for the middle class. This is part of their well oiled plan to topple Obama, and turn the American people against him, blaming him for every problem the country has had, including the Gulf oil spill to rising gas prices! Pathetic that this could happen in America because of the color of someone's skin and their political beliefs. The GOP is no longer 'the grand old party" it has become the 'shameful old party'.
Comment: #11
Posted by: Kathleen ONeill
Wed May 9, 2012 12:41 PM
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