Robes Gallery

What constitutes "good Behaviour" for a Supreme Court Justice?

Here is what it says about the judicial branch of government in the Constitution, that faded piece of parchment the so-called “originalists” hold in such lofty esteem:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. The Judges of the supreme Court shall be called Justices, and they shall sit in Judgement on the Court for Life, and they shall wear black Robes like Albus Dumbledore, with white Wigs being optional, and they are the Vicars of Christ on Earth.

Obviously I made up that last sentence; it is Snape, not Dumbledore, who wears a black robe, and James Madison would not have made that mistake.

But Article III, Section 1 is striking. I’m just a lowly English major who had zero interest in going to law school, but from what I can gather, the Founders did not view the Justices of the Supreme Court as godly, omnipotent, or above criticism. Nor are lifetime appointments explicitly spelled out. Yes, Alexander Hamilton mused on this concept in Federalist No. 78—a sort of liner notes to the Constitution—opining that the judicial “is in continual jeopardy of being overpowered, awed, or influenced by its coordinate branches,” and that “nothing can contribute so much to its firmness and independence, as permanency in office.”

But Hamilton’s primary purpose in Federalist No. 78 is not to insist that these ultimate arbiters of right and wrong stick around until their dotage, but rather to expand upon the necessity of mandating “good Behaviour” as a condition to keep the gig: “The standard of good behaviour for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government,” he writes. “In a monarchy it is an excellent barrier to the despotism of the prince: In a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright and impartial administration of the laws.”

Remember, the Founders declared independence from Britain because the king was being a tyrannical dick. The last thing they wanted was a Supreme Court dominated by George the Thirds.

Fast-forward 235 years, and that’s pretty much what we have. Of the nine Supreme Court Justices, (at least) five carry themselves like potentates, hiding their venality beneath medieval robes, insisting that their shady af activities are on the up-and-up, demanding less scrutiny and more respect from the hoi polloi, and exacting tribute in apparent exchange for concessions on the bench.

Let’s take a quick survey:

Clarence Thomas

“Clearance” Thomas is the most egregious offender. ProPublica has reported extensively on the freeloading judge rinsing the billionaire Harlan Crow, who has financed Thomas’s vacations, travel, entertainment, meals, and [checks notes] mother’s house. Let’s accept, for the sake of argument, the assertion that these two kindred spirits are actually friends IRL. Given Crow’s long history of rightwing political activism, his largesse looks like nothing more than textbook graft. (Whether this is technically legal, as Mark Paoletta—one of the two other dudes immortalized in that oil painting with Thomas, Crow, and Leonard Leo—argues in the National Review, misses the point.) Seriously, though: if we found out tomorrow that Thomas carried Crow’s AMEX Black Card in his wallet, and used it to pay for everything from groceries to gas to dry cleaning his judicial robe, would anyone be remotely surprised?

Neil Gorsuch

This pompous blowhard had a piece of real estate on the market for almost two years. No sooner did his confirmation pass the Senate than it sold—to the CEO of a ginormous law firm with “a robust practice before the high court,” per Politico’s Heidi Przybyla. Gorsuch pocketed between a quarter and half a mil on the transaction—which, again, took place just nine days after he took the robe. This may be just a coincidence; the chief executive in question, Brian Duffy of Greenberg Traurig, had never met Gorsuch, and is primarily a donor to Democrats. “The fact that he was going to be a Supreme Court justice was absolutely irrelevant to the purchase of that property,” the high-powered attorney told Politico. Then Duffy added: “It’s a wonderful piece of property and we’re so glad we bought it.” I assume he meant the acres of land and not Gorsuch.

John Roberts

As far as we know, the Chief Justice doesn’t participate directly in pay-for-play. But Business Insider reported that his wife, Jane Roberts, earned over $10 million in commissions from “elite law firms” related to her job as a legal recruiter. I don’t like when pundits get on their high horse about spouses of high-powered people; we are all individuals, and what our husband or wife does for a living should not matter. Also, per Insider, she gave up her legal career when her husband became Chief Justice, in part to avoid the appearance of conflict of interest, which is noble. Even so, if you are on the Supreme Court and your wife’s job involves working closely with prominent attorneys who may have business before the Court—that’s a little sus, as the kids say. (Call me crazy, but I also believe that the spouses of SCOTUS judges should not be involved, even tangentially, in plots to overthrow the government; AITA?)

Amy Coney Barrett

She reportedly scored a $2,000,000 advance on her book deal, which is approximately $2,000,000 more than any book deal I’ve been involved in. The way publishing works, she gets to keep every kopek, even if the book is a flop. It’s perfectly legal—Clarence Thomas did it, too, back in the day—but the optics are terrible.

Brett Kavanaugh

Stephanie Koff and I covered Boof’s fishy-ass financials extensively two years ago. It didn’t add up then, and it doesn’t add up now. And while it it very likely that the cash for the down payment on his Chevy Chase home and his credit card debts was furnished by his wealthy father, a retired lobbyist, Kavanaugh never actually said so. Either he didn’t want it on the record that he’s a nepo baby, or he didn’t want to lie under oath about the true source of the money.

Sam Alito

There has not been an expose in the press on Sam Alito financial hijinks, so maybe this thin-skinned misogynist doesn’t live high on the hog like his buddy Clarence Thomas. Maybe he prefers to spend his leisure time complaining about the public not respecting him, concocting tin-foil-hat theories about the identity of the SCOTUS leaker, and researching obsolete British witchcraft laws he can work into future decisions stripping women of their rights.

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As best as I can tell, the Justice who decided that low-key graft was very legal and very cool was Antonin Scalia, the godfather of the Leonard Leo faction of the Court, and the mentor to Clarence Thomas and Sam Alito. (The latter was such a slavish devotee that he earned the derisive nickname “Scalito.”) In his statement after the ProPublica bombshell, Thomas said, “Early in my tenure at the Court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable.” He was almost certainly referring to his pal Scalia, who died on a hunting trip underwritten by some wealthy Republican.

“Scalia famously loved hunting and took countless all-expenses-paid hunting trips during his time on the Court, often on the (undisclosed) dime of gun lobbyists,” wrote Alex Aronson, the former chief counsel for Senator Sheldon Whitehouse. “In March 2007, he went Nuremberg, Germany for the NRA-funded World Forum for the Future of Sport Shooting Activities. At the time, Heller was headed toward the Court’s docket. Justice Scalia’s eventual opinion in the case would radically redefine and expand the scope of the Second Amendment right to bear arms, delivering a landmark win for the NRA and the firearms industry. Some of the groups funding the conference, including the NRA, were amici curiae in the case. While at the conference, Justice Scalia spoke with ‘gun rights’ activists Alan Gottlieb of the Second Amendment Foundation and Stephen Halbrook of the NRA—both Heller amici.”

You’re not gonna believe this, but Scalia sided with his hunting buddies in the case. In 2008, D.C. v. Heller held that, despite the Second Amendment explicitly stating that the right to bear arms is predicated on “a well regulated Militia, being necessary to the security of a free State,” the right to bear arms is not predicated on “a well regulated Militia, being necessary to the security of a free State.” So much for “originalism.”

I should add here, in the interest of fairness, that Ruth Bader Ginsburg was friends with Scalia and seems to have shared his enthusiasm for special-interest-funded travel. So this graft problem is not unique to conservatives. Maybe this is why Congressional Democrats have showed little interest in making waves; when it comes to SCOTUS, Dems are more likely to authorize more security than demand more scrutiny.

Some form of graft has probably gone on since the days of Alexander Hamilton. We know that Abe Fortas, for example, made some questionable moves with regard to his side hustles. And Samuel Chase, a SCOTUS justice who was impeached in 1804 and acquitted a year later, was even more nakedly and arrogantly partisan than Sam Alito at an open mic night. But in what universe does accepting what amounts to bribes constitute “good behaviour?”

Ah, but let’s read Article III Section 1 one more time. “The Judges…shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” The Constitution guarantees that SCOTUS justices get paid, and get paid more and more over time—but it doesn’t say how they get paid, or who issues the payments. Harlan Crow’s right to endow Clarence Thomas is spelled out right there in Article III! Checkmate, liberals!

(That last paragraph was a joke. At least, I think it was.)

In theory, Supreme Court Justices are selected and confirmed because of their superior judgment. That’s literally the job. Unfortunately, and unsurprisingly, lousy ethical judgment has translated to lousy judgment on the bench. Scalia gave us Heller, and is therefore directly responsible for the explosion of gun violence since 2008. Roberts gave us Citizens United, opening the floodgates of dark money in politics; he also weakened voting rights. Alito gave us Dobbs, which will lead directly to more women suffering and dying during pregnancy and in childbirth. Those are garbage decisions that have led the country down the slippery slope to fascism; unless something is done about it, and soon, the three awful Trump appointees will only continue to speed that process along.

The urgent course of action is to expand the Court. If Harlan Crow and his ilk are going to throw money at sitting SCOTUS justices, better that they own one of 27 or one of 81 than one of just nine. Don’t let the robes fool you.

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Photo credit: Phil Roeder. The nine chairs of the Justices lined up in the Court Chamber.

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ICYMI

Alex Aronson was our guest on The Five 8 on Friday: