As he prepares to finally abandon his age-old role as Senate Republican leader after the November elections, Mitch McConnell looks to be gearing up for his next and, perhaps, final act in the public eye – presiding as mother hen over that monstrosity formerly known as the U.S. Supreme Court.
And he thought corralling the likes of Sen. Ten Cruz, R-TX, was tough.
It seems only fair. McConnell, of Louisville, is primarily responsible for the disrepute this once canonized institution has devolved into. His crass political maneuvering and devotion to turning a blind eye toward the court’s obvious failings under Chief Justice John Roberts makes him a natural for defending the indefensible.
He’s off to a fast start. President Biden, the former chair of the Senate Judiciary Committee who realizes the court needs a life preserver to restore the nation’s trust, visited the LBJ library in Austin this week to commemorate the 60th anniversary of the passage of the Civil Rights Act of 1964. There he floated a series of proposals to restore the public’s faith in the court, including term limits for the justices who currently enjoy lifetime appointments and the imposition of a binding code of ethics.
“I have respect for institutions and the separation of powers laid out in the Constitution,” Biden said in a 20-minute speech. “But what’s happening now is not consistent with that doctrine of separation of powers. Extremism is undermining the public confidence in the court’s decisions.”
Biden’s proposals are actually quite modest compared to some of the ideas that have been floating around, including an expansion of the court itself, from nine to who knows how many justices, a move that can be accomplished with simple legislation since Congress is empowered to decide. The number fluctuated before it was set in 1869. President Franklin Roosevelt considered the court-packing proposition in the 1930s when the court, then jocularly known as the Nine Old Men, struck down facets of the New Deal. He eventually backed off.
The president didn’t call for expansion or anything earthshaking, although he did offer a constitutional amendment to essentially overturn a recent court outrage that provides the president with king-like protections should he run afoul of the law. But McConnell grew apoplectic over the very idea of the executive or legislative branches getting involved in the court’s business, claiming that in doing so Biden places “the independent judiciary to the torch.”
“President Biden and his leftist allies don’t like the current composition of the court, so they want to shred the constitution to change it,” McConnell roared, as much as an 82-year-old man can roar (more like coughed). “He wants what he calls an ‘ethics code,’ but that already exists. What the president is actually proposing is a stealth process for people other than the justices to decide cases. Again, constitution be damned.”
And to cap it off, “They decided the time has come to eliminate the Supreme Court as we know it.”
Eliminate? Like in The Godfather? Good lord. To quote Sgt. Hulka (played by Kentucky’s own Warren Oates) in the 1981 comedy gem Stripes, “Lighten up, Francis.”
Let’s take the easiest one first. The court, after years of neglect, issued what it called a “code of conduct” in Nov. 2023 — less than a year ago — that is substantially weaker than the ethics codes that address other parts of the government and, here’s the kicker, there’s no enforcement mechanism.
It’s as if the Ten Commandments were actually the Ten Suggestions.
So why, precisely, does the U.S Supreme Court need an enforceable code of ethics? That can be summarized in three words – Justice Clarence Thomas.
As a Supreme Court justice, Thomas earns $274,200, which most folks might consider a tidy sum. Combine that with speaking engagements, special appearances, and book authorship, and it can all add up.
Not for Clarence, who, like Blanche Dubois, is living off the kindness of strangers.
Thanks to the efforts of ProPublica, the public has determined that Thomas has, for several years, accepted gifts and luxury travel totaling perhaps in the hundreds of thousands of dollars from Harlan Crow, a Republican real estate magnate who was associated with at least one business that had a case before the court during Thomas’s long tenure.
And, of course, Clarence sorta, kinda, forgot to report many of these gifts and trips on his financial disclosure forms. Oh, and Crow bought the house Thomas’s mother lived in, and grabbed the tab for the private school tuition for Thomas’s grand-nephew.
And don’t forget Thomas is likely to be hearing cases resulting from the Jan. 6 insurrection, even though his politically activist wife, Ginni, might be tangentially involved.
In his defense, sorta, Thomas isn’t the only justice playing fast and loose on the ethics scorecard. Thanks again to ProPublica, we know Justice Samuel Alito went on a luxury fishing trip with hedge-fund billionaire Paul Singer, whose firm had business before the court, although Alito claims ignorance, which (cheap shot warning) is easy for him to do.
Interestingly, Alito said he didn’t think he had to report the excursion on his financial disclosure forms and that, and this is a good one, he was able to nab the seat on Singer’s private plane because it “would have otherwise been vacant.’’
I’m sympathetic. Happens to me all the time. A billionaire offers me a seat on his private jet to go on a fishing trip. Perfectly understandable.
There are other less significant scrapes – aides to Justice Sonia Sotomayor reportedly pressured organizations sponsoring her speaking engagements to purchase copies of her book. Justice Neil Gorsuch sold property to an attorney whose firm had business before the court.
There’s others, but you get the gist.
McConnell claims any imposition of a enforceable ethics code would violate the separation of powers between the branches of government. But the court is in the practice of telling Congress and the president what they can and can’t do. So who tells the court? Who’s watching the watchman? You can’t say the voters can always vote them out – they’re appointed to lifetime positions. When the court refuses to act, something needs to be done.
Another thing to consider: How does this constitute, as McConnell maintains, “a stealth process for people other than the justices to decide cases?’’ How does it “eliminate the Supreme Court as we know it?’’ Mitch is either gaslighting or, perhaps, he needs to retire earlier than planned.
The issue of term limits would almost certainly require a constitutional amendment since it is set in stone in Madison’s gameplan. (Although it might be noted that when Whitey Herzog was offered a lifetime contract to manage the St. Louis Cardinals by 80-year-old owner Gussie Busch, he replied, “Your lifetime or mine?” Just wanted to throw that in.)
Despite McConnell’s hyperbolic reaction, term limits would not torch the high court, especially if the proposal provides for the possibility of reappointments. What it would do is eliminate dead wood — and, yes, we’re looking at you, Justice Brett Kavanaugh — and see to it that justices of a certain age don’t continue on the bench past their sell-by dates.
Two justices, Oliver Wendell Holmes and John Paul Stevens, were 90-years-old at the time of their retirements A number of them heard cases into their 80s. If Biden was too old, at 81, to run for president, it seems logical that Supreme Court justices who reach a certain age are limited in their ability to meet the tasks at hand.
This from an article in Virginia Law Weekly about Justice William O. Douglas, who is still the longest serving justice in history, 36 years:
On November 12, 1975, Justice William O. Douglas announced his retirement in a letter to President Ford. The Justice suffered a debilitating stroke in 1974, but tried to continue serving. His condition became so poor, however, that the other Justices created a plan for any case that Douglas would be the fifth vote in an otherwise evenly split, four-to-four decision. The Justices agreed they would hold the case over for re-argument in the next term, awaiting either Douglas’ recovery, or a new judge (Douglas was unaware of this arrangement). Eventually, former law clerks and friends convinced Douglas he was incapable of fulfilling his duties.
So, basically, Mitch is just bloviating, something he does very well. The proposals can actually have a positive impact. Besides, if the package manages to “eliminate the Supreme Court as we know it,” under the circumstances, it might not be the worst thing.
As Michael Waldman, president and CEO of the Brennan Center for Justice at the New York University School of Law wrote, “In many ways, these are conservative ideas. Term limits rest on a foundational premise of accountability: nobody should hold too much public power for too long. George Washington taught us that when he stepped down after two terms. A binding ethics code confirms that nobody is so wise that they can be the judge in their own case.’’
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Written by Bill Straub, a member of the Kentucky Journalism Hall of Fame.
Cross-posted from the Northern Kentucky Tribune.
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