Supreme Court “Scandals” Are a Mask for an Unconstitutional Power Grab

by | Jun 21, 2023 | Law and Fair Courts

Here’s how the Left is working to delegitimize the nation’s highest court, step by step.

The Scandals That Aren’t

Like most Democratic agendas, carefully constructed in national institutions out of public view and then released onto an unsuspecting audience, the de-legitimation of the Supreme Court seems like it came out of nowhere.

Beginning with an April ProPublica report on Justice Clarence Thomas and accelerating into scandals enwrapping Justices Neil Gorsuch—and even Democratic appointee Sonia Sotomayor—it’s cascaded to the point where the court’s very legitimacy is said to be in question.

In reality, the “scandals” are the tip of the spear of a Democratic Party project that pierces the foundations of our constitutional Republic: Reducing the power of the court as the arbiter of our federal system in favor of Congress and the president.

Laying out the project’s operators and their methods serves as a reminder, like an inspirational quote on a study wall, that the real story here isn’t the headlines or official statements. It’s the subtext: the groups driving the headlines and statements for their own unconstitutional purposes.

Planning the Attack

Like the pattern of many past Democratic plans-to-conquer, the assault on the court originates in the academy: Liberal, mostly elite law faculties whose membership is controlled by former clerks of the Warren Supreme Court, which spent the 1960s expanding national power at states’ expense. Thirty years ago, as the moderate conservative Rehnquist Court limited some Warren Court rulings, Cass Sunstein—Harvard Law Professor, future Obama adviser, and future husband of Obama-and-Biden official Samantha Power—was already gearing up for a crusade.

The court, Sunstein advised, was “courting disaster” by giving back more power to states over issues like religion which, he argued, could turn the United States into sectarian-split Iraq. Worse, according to Sunstein, by striking down acts of Congress and the executive branch, the court was giving itself unwarranted power over Congress and the president.

Over the years, as the Rehnquist court became the more conservative Roberts court, scholars expanded this argument. Samuel Moyn, a Columbia professor who testified before President Biden’s commission on “reforming” the court, wrote in the Washington Post that Congress should work at “diminishing the court’s power” by limiting its jurisdiction or “establish that a supermajority of justices is required to strike [some laws] down.” 

Harvard Law professor Laurence Tribe, probably the most well-known Commission member, and Nancy Gertner, a Commission member, Harvard Law professor and former Democratic-appointed federal judge, wrote that Congress and the President should pack the court because “the Court isn’t well” and “the only hope for a cure is more justices.” (“It was a place of solidity and rational discourse. It really is not anymore,” Gertner later said of the court.)

Kermit Roosevelt III, a University of Pennsylvania Professor who served on the Biden commission, thinks that the federal system that divides power between states and nation—the system which the court upholds—is historically illegitimate and should be replaced with a more nationalized government underwritten by sweeping congressional legislation.  

Hospitable outlets like the Washington Post and the New York Times, home to academically connected reporters like Jamelle Bouie and Linda Greenhouse, ran these ideas enthusiastically. As Greenhouse put it, their coverage “lets the public in on the fact that the legal academy is close to giving up on the Supreme Court.” Or, in the words of Michael Tomasky, formerly the editor of the academic-journalistic magazine Democracy and now of the D.C.-based outlet the New Republic (and known as a major ideas and policy feeder for the Biden White House):

the court is corrupt, both judicially and ethically, because of the extreme ideology six of its justices serve.

In the context of this agenda-setting, it’s not a leap for less academically grounded colleagues to pick up the ball and generate headlines to limit the Supreme Court’s power.

Biased Headlines

The hardline push in this direction began six years ago, when the court’s membership began shifting rightward thanks to President Trump’s nominees; but it’s accelerated since the court overturned Roe v. Wade with the 2022 Dobbs decision.

The headlines in question today—Supreme Court justices selling jointly-owned property, investing in stocks, accepting gifts from political friends, receiving large book advances, and speaking before advocacy groups—aren’t “scandals” or even news, since they don’t conflict with the business of the court. But the reporters running these headlines don’t want to make an actual case that a branch of the government is entangled in conflicts of interest. They want to push the public into “giving up” on the court by releasing stories that turn into clickbait—stories which networks and websites, for ideological and financial reasons, will gladly pick up.

The original ProPublica report on Clarence Thomas is an example of how this process works. The first report, run by an outlet funded by prominent Democratic donors including George Soros, was released April 6, detailing Justice Thomas’ ties to the Republican donor Harlan Crow: A thirty year friendship that included gifted trips, sponsorships, and donations. Seven days later, ProPublica released a second report—and less than a month after that a third, each detailing what it labeled “nondisclosures” by Justice Thomas, as well as further donations from Crow.

Not a single piece of any of these stories had anything to do with a case brought before the court. But they generated headlines, especially since they were released over time, suggesting to a casual observer an image, as the New Republic put it, of “walls closing in.”

When the story got picked up by popular media outlets which usually lean the same way politically, it accelerated fast. Google “Clarence Thomas Financial Disclosures” today and you’re given 1,680,000 results.

Updates only added to the fire—and the number of clicks. One, from left-leaning NBC Universal, reported that “Most Supreme Court Justices Release Financial Disclosures; Thomas, Alito Ask for More Time,” an understandable request considering both are the media’s prime targets, but one that without context suggests corruption, especially when it and other expenditures by conservative justices are contrasted with the apparently “heartwarming” or modest financial disclosures of liberal ones.

And even when conservative outlets (understandably) point out that liberal justices shouldn’t be above scrutiny either, this generates still more stories with quotes from “legal experts” that the court needs congressional reform. Put simply, if the price of reforming the Supreme Court is smearing its liberal justices, that’s a cost the court’s attackers are willing to pay.

Removing the Brakes

But the stories don’t end with ethics allegations. They also extend to publicizing and disseminating unrelated but damaging reports, like one that Clarence Thomas’ friend Harlan Crow, an avid historical collector, owns a collection of Nazi memorabilia.

“It is alarming to learn that one such collector of Nazi paraphernalia is a close friend of a Supreme Court justice,” wrote Jamelle Bouie in the Times. Jane Mayer, the longtime New Yorker writer who broke the harassment allegations against Justice Kavanaugh and reports regularly on Justice Thomas’ wife, tweeted: “Hmm. Clarence Thomas’s Billionaire Benefactor Collects Hitler Artifacts.” Even when she clarified to the Atlantic that she didn’t believe Crow was a Nazi, it only gave more life to the “Nazi issue.” Mainstream websites that lean left jumped on the trend. Google “Harlan Crow Nazi” today and Google gives you 587,000 results.

The intent of this deluge was signaled by Tomasky when he wrote that:

the Democrats Need to Destroy Clarence Thomas’s Reputation: They’ll never successfully impeach him. But so what? Make him a metaphor for every insidious thing the far right has done to this country.

In this line of reasoning, the only question left is how to pull it off.

Certainly this is the view of the Washington Post, whose resident Supreme Court columnist, Ruth Marcus, is urging Chief Justice Roberts to seek an investigation into Thomas by the Judicial conference of the United States—what amounts to pushing the court to target its most prominent conservative over connections that present no conflict of interest in any past or present court case.

If the court decides against savaging itself, there’s a backup plan, too. Politicians will take up the slack: as the Post recently asked, “How Aggressively Should Democrats Attack the Court?”

Advocacy Groups and Politicians Apply Pressure

Enter the politicians who use these attacks to push the agenda the law professors signaled and the media enabled: Limiting the court’s power.

“Progressive” advocacy groups had been gearing up for this fight since Justice Amy Coney Barrett’s confirmation in 2020. Especially active was Demand Justice, a spin-off of the multi-billion-dollar Arabella Advisors network and indirectly funded by the Gates Foundation. Demand Justice is headed by former Obama White House insiders Brian Fallon and Christopher Kang, who thought the way to pressure 83-year-old Democratic Supreme Court appointee Stephen Breyer into retirement was to drive a van blaring “Breyer Retire!” in circles in front of the Supreme Court.

Still, this push—and quieter pressure from insiderssucceeded. So did Democrats’ media-backed push to jettison incoming Judiciary Committee Chair Sen. Dianne Feinstein (D-CA), who frustrated her colleagues with a more bipartisan approach to the confirmation hearings of both Kavanaugh and Barrett. Thanks to a New Yorker piece by Jane Mayer relying on anonymous sources, Feinstein’s removal was justified in retrospect by purported memory problems that had not prevented earlier senators from serving but in this case set off a cascade of articles quietly supported by Senate Majority Leader Chuck Schumer (D-NY).

Her replacement, Schumer Deputy Senate Majority Whip Dick Durbin (D-IL), is less concerned with separation of powers. Durbin requested that Roberts testify in person before the committee about court ethics: An event that, as Roberts noted in his refusal, has occurred only twice in the last century, each time involving “routine matters of judicial administration . . . as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.”

Durbin responded that “history will judge” Roberts. Publications as far removed from politics as Vanity Fair reported that “John Roberts Just Gave the Middle Finger to the Senate—And the Public” and Michael Tomasky promised that “Clarence Thomas’s Troubles Have Just Begun.”

“Troubles Have Just Begun”

As Tomasky pointed out, Durbin and allies like Senate Finance Chairman Ron Wyden and longtime Court-critic as well as Judiciary Committee member Sheldon Whitehouse aren’t slowing down. Durbin and Wyden “wrote to Crow asking him to detail all his gifts to Thomas” and Whitehouse “asked the Judicial Conference, the policymaking body for federal courts, to reveal how it handled an inquiry into Ginni Thomas’s [wife of Clarence] income in 2011.” 

Other operators are working, too. Sen. Angus King (ME), an independent who caucuses with the Democrats, has introduced legislation requiring the Supreme Court to adopt a code of conduct, joined by moderate Republican Senator Lisa Murkowski, whose past responses to Supreme Court “scandals” suggest an aversion to seeing the strategic forest for the tactical trees. Meantime, groups like Demand Justice call for investigations into Thomas and back Senators Ed Markey and Elizabeth Warren when they introduce a bill term limiting the justices.

And the anti-court cabal is eager to take credit. Even in cases where conservative justices give rulings for liberals that have substantial basis in these justices’ past views of the law, members of the cabal have claimed the victory, with the promise of more pressure on the way.

Conservatives should realize that this isn’t going to stop—unless we stop it ourselves.

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