Is the US Supreme Court living up to minimum ethical standards?

Political corruption in America's highest court has benefitted Democrats as well as Republicans

US Supreme Court Associate Justice Ketanji Brown Jackson and Chief Justice John Roberts on the front steps of the Court building following her investiture ceremony in Washington, on September 30. Reuters
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Corruption is built into politics. No political system anywhere in the world has ever been completely free of it. But there are differing degrees of corruption between systems, or in various eras within any long-lasting one. The US is no exception. But it is particularly appalling that the Supreme Court now appears to be the centre of political corruption in America.

Venality may be universal, but each system has its own framework to delineate specific forms of corruption. The US, for example, traditionally practices a form of simony – the purchasing of official roles – given that both parties routinely appoint major donors as US ambassadors. In most countries, that would be considered intolerably corrupt. In Washington, no one even notices.

But recently, deeper and more corrosive forms of inequity have become common practice. Since former US president Donald Trump left the White House, the Supreme Court seems to have become the most corrupt major institution of the three branches of US government (the other two being the legislature and the executive.

Members of the US Supreme Court, on April 22, 2021. AFP

It is a tall order for a mere nine judges to outdo the 535 members of Congress and the vast and labyrinthine apparatus of the executive branch. But they've managed to do it, and if that's ever been the case in the past, it was certainly more than a century ago.

In fairness, the Court itself has been deformed by the legislature and the executive. Senate Republican leader Mitch McConnell arbitrarily denied Democratic president Barack Obama a Supreme Court seat by refusing to grant his nominee a hearing for almost a year, handing the opening to his Republican successor, Mr Trump. The two later conspired to push in Amy Coney Barrett a mere week before the election in which Mr Trump lost to President Joe Biden.

Only one of the three justices appointed by Mr Trump was confirmed without parliamentary chicanery. That was Brett Kavanaugh, whose hearings instead featured allegations of a sexual assault in high school that he denied. It was never meaningfully investigated and was ignored by the Republican Senate majority.

An additional taint of corruption hangs over the confirmations of several serving justices, including Mr Kavanaugh. A stench of perjury hangs in the air, whether regarding seemingly credible allegations of sexual misconduct against him or Clarence Thomas, which they deny; or that Mr Kavanaugh and others who voted to overturn the constitutional right to an early-term abortion, swore under oath in their confirmation hearings that they considered the question “settled law". There are now, therefore, unavoidable doubts about their truthfulness, even under oath.

In 2010, the Supreme Court ruled that corporations and other groups enjoy the same First Amendment rights as human beings and that donating money is a form of protected free speech. This overturned a century of restrictions on campaign finance and other political spending, and unleashed a flood of "dark money", in which billions are spent annually manipulating the political system anonymously and without any accountability, transparency or public knowledge. In this regard, the Court is not only corrupted, it is evidently corrupting the country as well.

Democrats as well as Republicans have benefitted from the resulting political corruption, though Democrats claim to want to eliminate the practice. At a time of exceptional wealth disparity in the US, the Court ruling weaponised the power of affluence and accumulation to protect and promote itself at the expense of the general public and broader society. A series of additional complementary decisions have combined to create a wild west atmosphere when it comes to dark money in US politics.

American politics has not been this tainted at least since the “Gilded Age” of the robber barons in the late 19th century. The current era has been frequently, and accurately, labelled a “Second Gilded Age". This panoramic political fiddling rests on the Court’s repeated rulings that corporations have the same constitutional rights as actual, living human beings (though they cannot assume most corresponding social and legal responsibilities, beyond their usually circumscribed tax payments), and that spending money is a form of speech. These preposterous equivalencies – that corporations are people, and that money is speech – make no rational sense other than to enable and expedite the quick and easy transmutation of cash into political power and influence.

Unsurprisingly, given the nebulous and tantalising environment it has created, the Court itself has become corrupt. Mr Thomas has repeatedly refused to abide by minimal ethical standards in failing to remove himself from several cases directly involving his wife Ginni Thomas. The Supreme Court has exempted itself from the ethical standards it applies to all other courts. Indeed, there are no means, short of impeaching justices, to hold it to any ethical standards.

The US Supreme Court. AFP

The New York Times recently revealed that a former anti-abortion lobbyist says he was informed at a dinner by Justice Samuel Alito of the upcoming outcome in a major case. That would be a colossal ethical breach. Mr Alito denies this, but emails and other contemporaneous evidence strongly support the allegation. Given that Mr Alito was one of the justices who swore under oath that abortion rights were settled law only to vote to abolish them, his potential for dishonesty has been established.

Naturally, huge, well-funded lobbying campaigns have been aimed at the Court. One group bought a building across the street to ensure constant access to justices and their staffers, who were plied with invitations to dinners, vacation homes and private clubs, contributions to the Supreme Court Historical Society and other favoured charities, and additional inducements. If this sounds like the venal practice of spending money to influence politicians, that's because it is.

Mr Alito – who must now be the prime suspect in the leak (that he especially furiously condemned) of a draft of the decision overturning abortion rights – and his colleagues in question have revealed themselves to be essentially dodgy politicians. Indeed, the Constitution makes the Court part of the political system. It is high time for everyone, not just the ethically challenged judges, to recognise and act on that forgotten fact.

The Congress and the White House have the power, through various entirely constitutional means, to intervene. They cannot act too soon.

Published: November 28, 2022, 2:00 PM