Democrats in Congress, together with their allies among left-wing groups and in the media, are attempting a hostile takeover of the Supreme Court. Their current tactics demonstrate what “by any means necessary” really means.
In the system of government America’s Founders gave us, limits on government are necessary to achieve its purpose of protecting liberty. Those limits include the separation of powers, federalism, a written Constitution, and a judiciary that will follow—rather than control—that Constitution.
Limits like those help keep too much power from ending up in too few hands.
The Left, however, is after power rather than liberty and, therefore, sees limits on government as obstacles to be overcome. They especially want to control the Supreme Court because it’s the final interpreter of the Constitution, the “supreme law of the land.”
Controlling what the Constitution means is controlling what the Constitution is, no matter what it says.
The Left’s campaign to control the Supreme Court has three parts.
First, they push the idea that the current justices are deciding cases politically, rather than impartially. In other words, the justices are twisting and shaping the Constitution’s meaning to reach results that advance certain political interests.
This tactic appears to be working. In a March poll, 62% of respondents said that justices often decide cases based on “their own personal or political views,” rather than “legal analysis.”
Second, the Left attacks Supreme Court decisions, and individual justices, that do not reliably advance liberal political interests, as partisan, corrupt, or unethical.
Sen. Sheldon Whitehouse, D-R.I., for example, claims that the Republican-appointed justices have “delivered rulings that advantage the big corporate and special interests that are, in turn, the political lifeblood of the Republican Party.”
Whitehouse doesn’t even try to argue that the decisions he doesn’t like were legally incorrect, or applied the law improperly, only that they advanced the wrong political interests.
The Left’s personal attacks on certain justices follow the same pattern. Their agenda is obvious from the way they try to smear justices they don’t like and give a pass to the ones they do.
Most Americans know nothing about the laws and guidelines that justices follow in making decisions about such things as financial disclosures, recusing themselves from individual cases, or following general standards of judicial conduct.
Recent articles focused on Justice Clarence Thomas show how the Left exploits this ignorance.
One such article, “Clarence Thomas and the Billionaire” in ProPublica, claimed that Thomas and his wife, Virginia “Ginni” Thomas, had accepted transportation and lodging from a close friend on past vacations. Hardly the stuff of deep intrigue and scandal, right? But call the friend a “real estate magnate” and a “megadonor” and the vacations “luxury trips” involving a private jet and a “superyacht,” and you can hear the gasps and see the head-shaking.
There are only two relevant ethical questions: Did the friend bring cases before the Supreme Court, and was Thomas required to disclose such personal hospitality? No and no.
As Thomas explained in a statement, he sought guidance on that question when he joined the court in 1991 and was advised that the disclosure rules did not require reporting “this sort of personal hospitality from close personal friends, who did not have business before the court.”
No one has shown otherwise, nor could they.
But didn’t the Judicial Conference of the United States, which sets policy for lower court judges and whose guidance Supreme Court justices follow, change its disclosure rules for personal hospitality? Yes—effective March 14 of this year.
This “tweak” distinguished between staying at a friend’s home and at a resort he owns. The Left wants us to believe that Thomas should have followed disclosure guidance that did not exist at the time and would not exist for years.
Then there’s The Washington Post headline that Thomas “claimed income from a defunct real estate firm.” Turns out that, at least for purposes of attacking Thomas, “defunct” means only that the firm in question changed its name.
Thomas had, in fact, reported the income, but apparently had not noted the name change in his disclosure paperwork. That’s pretty minor even for an oversight, and certainly not evidence of an ethical scandal.
The Left used also used the personal smear to fight Thomas’ Supreme Court appointment in 1991 for same reason they do so now—to undermine his influence. Then-Virginia Gov. Douglas Wilder suggested that, having been raised Catholic, Thomas’ allegiance might be to the pope. The New York Times falsely reported that Thomas had a Confederate flag on his desk when serving as assistant attorney general of Missouri. (It was actually the Georgia state flag.)
Critics claimed that, while serving on the U.S. Circuit Court of Appeals for the District of Columbia, Thomas should have recused himself in a case involving a company in which his former boss, then-Sen. John Danforth, R-Mo., owned stock. Then, as now, the Left promoted such nonsense because they cannot, with a straight face, tell the American people that the Constitution should mean whatever any five members of the Supreme Court (at least when liberal justices are in the majority) say it means.
Thomas remains in the Left’s crosshairs because he has never believed that and, over the years, has been an increasingly influential voice on the Supreme Court.
The Left’s strategy is also obvious by their silence about ethical “lapses” by their favorite jurists. Take now-deceased 9th U.S. Circuit Court Judge Stephen Reinhardt, the most liberal member of the most liberal appeals court in the land. He refused to recuse himself from the constitutional challenge to Proposition 8 on same-sex marriage even though his wife had spoken publicly about it and her organization, the ACLU of Southern California, filed a friend-of-the-court brief in the case.
The Left was content with Reinhardt’s statement that his wife’s views “are hers, not mine, and I do not in any way condition my opinion on the positions she takes regarding any issues.” The Left, however, demanded that Thomas recuse himself from any case arising from the Jan. 6, 2021, riot at the U.S. Capitol because his wife had expressed her views on it.
If you’re not scratching your head about that, you should be.
Another liberal favorite, Judge Nina Pillard of the U.S. Circuit Court of Appeals for the District of Columbia, did not recuse herself from cases in which her husband’s organization, the national ACLU, had taken a position. Even when her court, with her participation, ruled in favor of the position the ACLU supported on issues such as conditions of confinement of detainees at Guantanamo Bay, Cuba, the Left never said a word.
There’s also the now-deceased Justice Ruth Bader Ginsburg, who refused to recuse from multiple cases in which her husband’s law firm filed briefs. During the 2016 presidential campaign, Ginsburg called then-candidate Donald Trump a “faker” and said that she could not imagine what the country would be like if he were president, yet she never recused herself from any case involving the Trump administration. Again, the Left said nothing.
Recently, the media similarly tried but failed to create an ethics “scandal” around Justice Neil Gorsuch. Days after he was appointed to the Supreme Court, and before participating in any cases, Gorsuch and two partners sold a vacation property, and he disclosed the sale on his next financial disclosure form without identifying the buyer. Columnist David Hersanyi examined a pile of disclosure forms and writes that no justice provided such information with regard to any income. While some are claiming that Gorsuch violated the ethics rules, The New York Times piece on this actually admitted that Gorsuch’s disclosure “did not violate the law” but, for some reason, still “underscored the need for ethics reform.”
A headline in Politico in late September claimed that Supreme Court “justices shield spouses’ work from potential conflict-of-interest disclosures.” It mentions Ginni Thomas; Justice Amy Coney Barrett’s husband, Jesse; and Chief Justice John Roberts’ wife, Jane, but stops there.
Liberal Justice Ketanji Brown Jackson, however, failed to disclose that her husband gets paid as a consultant in medical practice cases, but no one on the Left said a word, never asked about his clients, and never checked whether they had ever brought cases that reached the Supreme Court.
Jackson’s disclosure omissions went even further. She failed to disclose that, while a U.S. district court judge, both law schools and nonprofit organizations reimbursed her for expenses related to events in which she participated. There was not a peep from the Left. No questions were asked about whether the law schools’ faculty or the organizations’ boards had interests before the Supreme Court.
Do you see a pattern here? The Left smears only Supreme Court decisions they don’t like and individual justices they cannot rely upon for political help.
That brings us to the third part of the hostile-takeover strategy.
Having created this politically driven, faux ethics controversy, Democrats have introduced legislation to require the Supreme Court to produce a formal ethics code. That much might not sound serious, but because the Constitution, not Congress, created the Supreme Court, Congress does not have such authority.
All nine current justices signed a lengthy Statement on Ethics Principles and Practices explaining how they approach ethical questions, including in ways that necessarily differ from lower court judges.
The more serious problem, however, is that these bills would then allow anyone to file a complaint that a Supreme Court justice has allegedly violated some provisions of such a code.
Under S. 359, introduced by Whitehouse, every complaint must then be investigated by a group of five of the chief judges from the 13 appeals court circuits. Under S. 1290, introduced by Sen. Angus King, I-Maine, such complaints could be investigated by “federal agency personnel” and even “businesses that contract with the federal government.” The latter bill says nothing about how such complaints should be handled, but it does require that they all be posted on the Supreme Court website.
Listen closely and you might hear the Left preparing action alerts, fundraising appeals, and hysterical tweets urging their minions to start preparing those complaints.
Think that’s paranoid?
Starting even before Justice Brett Kavanaugh was confirmed, no fewer than 83 complaints were filed with the court on which he previously sat. That was just practice for what would come under these bills.
The Left craves power, and Supreme Court justices who respect the limits on their power are just standing in the way. The Left’s takeover strategy requires convincing Americans that judges are just politicians in robes, that the “conservative” ones are the enemy and unethical to boot, and that they will—as Senate Majority Leader Chuck Schumer, D-N.Y., warned in March 2020—“reap the whirlwind” if they don’t get with the political program.
If successful, the Left’s hostile takeover of the Supreme Court will destroy the independence of the judiciary that is necessary for our liberty.
This piece originally appeared in The Daily Signal