A modest proposal.

July 4, 2022

  

        In today’s newsletter, I offer a modest proposal for Supreme Court reform:

Restrict the appellate jurisdiction of the Supreme Court to those cases in which the justices who participate in the review and disposition of the cases (a) have no conflict of interest and (b) sign and file affidavits affirming they have no conflicts of interest. If a justice with a conflict of interest recuses themselves, the Court can exercise appellate jurisdiction.   

          If the proposal makes sense to you, please share it with friends and followers. I explain the background and some details below.

          The legitimacy and credibility of the Court are at all-time lows. One reason for the decline is the refusal of the Court to adopt a binding code of ethics that requires justices to recuse themselves when they have a conflict of interest. Right now, justices are “on their honor” to recuse themselves. But there is no mandatory, enforceable code of ethics requiring recusal where a justice has a conflict of interest. The “honor system” isn’t working.

          Justice Roberts has reportedly been working on such a mandatory code of ethics for several years. But Roberts has repeatedly written in opposition to the need for such a code. Perhaps recent events have changed his mind, but in the meantime, Justice Thomas has presided over matters in which his wife is a material witness to (or participant in) insurrection. Other justices have refused to recuse themselves when they had legal, financial, familial, or political entanglements with matters before the Court. Fix the Court has compiled a list of recent conflicts, including the following:

• Justice Scalia attended Koch Industries-backed retreat in Palm Springs in 2007, a time when Koch was bankrolling several litigants with cases before the Supreme Court;

• Justice Scalia flew on a private plane to stay for free in a $700-per-night room at the ranch of a businessman whose company had a case before the Court the prior year (Scalia voted favorably for the company).

• Justice Barrett refused to recuse herself from a case involving Americans for Prosperity, which spent more than $1 million to help get Barrett confirmed.

• Justices Alito and Kavanaugh met at the Supreme Court with the head of the National Organization for Marriage when it was appearing before the Court to urge opposition to the inclusion of gay and lesbian workers under Title VII of the Civil Rights Act. Although the Court granted protections to gay and lesbian workers, Alito and Kavanaugh dissented.

• Justice Gorsuch failed to recuse himself from a case involving Penguin Random House when Gorsuch had earned more than $650,000 from his book contract with Penguin Random House since becoming a justice.

          It is debatable whether Congress can force Supreme Court justices to adopt an enforceable code of ethics. But the Constitution provides that Congress can restrict the appellate jurisdiction of the Court, as provided in Article III, Section 2:

[T]he Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

          Congress has restricted the Court’s appellate jurisdiction in the past, and justices of the Court have repeatedly recognized the right of Congress to do so. See Joshua Zeitz writing in Politico, Opinion | How the Founders Intended to Check the Supreme Court’s Power.  

          The Constitution is plain: Congress can create “exceptions” to the Court’s appellate jurisdiction and may make “regulations” relating to that jurisdiction. Those words are in the text of the Constitution; they have meaning and force. We should use the express grant of authority to Congress to rein in the lawless and arrogant conduct of the justices that are undermining the public’s trust in the Court.

          There are many ways to implement such a proposal. I urge simplicity. Here is proposed language for a bill:

          “Congress hereby creates an exception to the appellate jurisdiction of the Court to limit such jurisdiction to cases in which the following two conditions are met:

(a)   All justices participating in the procedural or substantive review, consideration, and disposition of a case have no legal, financial, familial, political, professional, or personal interest (collectively, “Interest”) in the subject matter of the action or parties to the case.

(b)  Within 72 hours of the first request for relief filed with the Court, each justice files an affidavit under penalty of perjury declaring either (i) they have no Interest in the subject matter of the action or parties to the case or (ii) they have such an Interest and recuse themselves immediately from consideration of the case.

          Of course, the legislation would need to provide definitions and exceptions to ensure that a common conflict (e.g., a dispute over judicial salaries) does not force the entire Court to recuse itself. I leave the details to others.

          I recognize that past efforts to limit the Court’s appellate jurisdiction have focused on the subject matter of the case, rather than the relationship between the case and the justices. But the words of the Constitution are plain: Congress may create “exceptions” and “regulations.” My proposal does that.

          It is possible others have made this proposal previously. If so, good! I am aware that many organizations and Democratic leaders have proposed broad legislation to reform the Court. See, e.g., Senator Elizabeth Warren writing in the Boston Globe, Op-Ed, Senator Warren Calls to Restore Independent Judiciary.

          Such comprehensive proposals are laudable and deserve our support. But I am urging that we take one targeted action now that is authorized in the plain text of the Constitution. We only need a carve-out in the filibuster, a majority vote in Congress, and a signature by President Biden. If adopted, the proposal would force Justice Thomas to recuse himself from future matters involving his wife or, if he does not, it will deny the Supreme Court jurisdiction over the matter. The appropriate federal Court of Appeals would then decide the matter.

Concluding Thoughts.

          Given the holiday commemorating our declaration of independence from England, I will forgo discussing other news items today. But, in the spirit of the holiday, I link to the comments of Rep. Liz Cheney in a primary debate in which she is defending her seat in the House. She knows she is trailing by double-digits to opportunists and cowards in her party who are willing to spread the Big Lie for the chance to serve in the House. Cheney’s remarkable comments are here and deserved to be watched: Liz Cheney’s closing statement. In a difficult moment for our nation, Rep. Cheney continues to serve as an example to everyone who values our democracy—even as she strongly disagrees with nearly every political position of the Democratic Party.

          I also want to acknowledge the seemingly endless stories about Republicans across the nation taking ever more extreme positions on abortion and LGBTQ rights. I won’t catalog them here, but candidates in several GOP-controlled states are actively discussing legislation to challenge Obergefell and Lawrence. Other candidates are telling adolescent teens raped by family members that they cannot terminate pregnancies that are the result of violent assaults and prohibited unions.

          Republicans have forced themselves into this position: Having achieved (and exceeded) their goals in the Supreme Court, they have nowhere to go except to the furthest extremes of their party’s ideology. In an effort to outdo their competitors, candidates are taking outlandish, grotesque, and de-humanizing positions. Charlie Sykes of The Bulwark has called such tactics “performative cruelty”—in which cruelty is the point.

          Let’s be honest: Although we know performative cruelty is performative, it is also cruel. It is challenging to be a woman, LGBTQ person, or someone who loves them and not be affected by the venom spewing from large swaths of the GOP. I hear from readers who are psychiatrists, therapists, counselors, and mental health professionals telling me their patients are suffering under the verbal onslaught of hate. Everyone should be more supportive of people in their lives who are victims of the GOP performative cruelty. We are going through a very rough patch and they deserve our support.

          But . . . . the performative cruelty is a self-limiting condition. More people in America are decent and kind-hearted than not. And as the GOP seeks to stigmatize and denigrate women and LGBTQ people, they will alienate tens of millions of women, LGBTQ people, and those who love them. As painful as it is to watch, the race to the bottom by GOP candidates is accelerating the demise of the GOP. Among the many reactions to the next outrageous statement by a bottom-feeding politician, I hope that one of them is to remind yourself, “This is self-destructive behavior by a party in a death spiral.”

          We can’t count on Republicans to defeat themselves, but we should recognize that they create new impediments to their success every time one of them says something outrageous. And then we should go do something about it!

          Talk to you tomorrow!