Justice Samuel Alito claims Congress has no power to impose an ethics code on the Supreme Court.
And the high court’s embarrassing new “Code of Conduct” seems to concur. The court’s newly adopted code is notable for its permissive tone and lack of teeth, and confirms that justices answer to no-one.
Instead of mandating, directing or using the word “shall,” as most judicial canons do with directives, the code grovels before its own authors, flattering them with deferential suggestions that justices “should,” “should not” and might “endeavor to” act in certain ways.
The code also only looks forward, not back, dismissing very recent and serious ethical transgressions and gross conflicts of interest by some of the nation’s most powerful jurists, most notably Justice Clarence Thomas.
Meek and submissive, the code provides no penalties or provisions for investigating justices’ misdeeds and breaches. Utterly lacking any kind of enforcement, the code fails to create an entity or panel with oversight authority, like an inspector general, and instead invites justices to remain their own judges.
SCOTUS claims it’s all a misunderstanding
Another sore defect is the code’s lack of recusal, a matter raised consistently after Justices Alito and Thomas ruled in favor of their benefactors and self-interests, and after Thomas flat out refused to recuse himself from a case involving Trump’s efforts to stay in power, a cause in which his wife, Virginia, was deeply involved. While federal law mandates judges’ recusal in conflicts like these, SCOTUS’ adopted code merely suggests that the justices “should” disqualify themselves.
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Even the opening statement is self-deferential: “The absence of a Code has led in recent years to the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules.”
Someone should hand up the memo: America’s “misunderstanding” didn’t form in a vacuum. Justices Alito and Thomas don’t just “regard themselves as unrestricted” by ethics, they have so egregiously violated the rules of fair play they shouldn’t be allowed to serve. They certainly have no moral authority to impose their 18th century religious views on 350 million Americans.
Thomas luxuriates in a conservative donor’s uber-wealth
Gifts lavished on Thomas and his crusading wife, Ginni, taste, feel and smell appropriately lux: island hopping on staffed superyachts; pampered vacations worth millions over two decades; bougie boarding school tuition; a free refurbished home for mom; disguised provocateur “fees” for Ginni, and exclusive travel on private aircraft meant for heads of state.
The Thomases have luxuriated in conservative Harlan Crow’s uber wealth for decades. Meanwhile, most judges won’t even accept a free lunch, scrupulously avoiding any appearance of conflict. Clarence and Ginni Thomas show us how it’s done: not just the free lunch, but also the chef, the estate he toils in and a private jet, yacht and custom RV to travel to the secluded island it sits on.
These modern-day ermine furs have been bestowed on a Supreme Court justice who, in return, grafts unyielding conservatism onto a 230-plus-year-old founding text that was never meant to be static.
From his perch on the high Court, Thomas has advanced putative “originalist” 1791 values — as he selectively curates them — from an era when women had no vote or voice and humans were legal chattel.
According to Thomas and his federalist friends, the meaning of the U.S. Constitution must be fixed according to the understandings of those who ratified it. Where advancements in modern science or technology over 200 years interject pesky ambiguity — as they will — Thomas meets the moment by spinning history, pronouncing his own views as “original” to the founders.
Clarence Thomas: Marriage for me but not for thee
Thomas’ originalist ruse has put a gun in every hand, while threatening Americans’ right of privacy. In Dobbs, the Court’s results-driven departure from Roe v. Wade, Thomas wrote a concurring opinion that questioned the entire right of privacy, saying he would go further — much further — than the majority.
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Thomas suggested that the Supreme Court ‘reconsider’ its prior substantive due process cases because the right to privacy, he says, is not supported by the Constitution. Specifically targeting Griswold, Lawrence and Obergefell decisions, Thomas says citizens have no protected privacy right to contraceptives, same-sex sex, or same-sex marriage.
Analysis supporting the Constitutional right to same sex marriage in Obergefell flowed directly from Loving v. Virginia, the landmark case that struck down anti-miscegenation laws under the 14th Amendment. Thomas saved for another day how he would protect his own mixed race marriage to his wife Virginia under Loving while outlawing marriage for others under the same analysis.
Alito preserves his own fossil fuel wealth
As for fossil-fuel darling Alito, he accepted an expense-paid Alaskan fishing retreat with Paul Singer, a billionaire fossil fuel investor, major GOP donor and hedge-fund manager with cases before the court. The exclusive junket was arranged by Leonard Leo, a Federalist Society extremist who fights climate science and works to put conservative jurists with similar views on the federal bench.
Around the same time as the 2008 fishing trip, a not-for-profit called Citizens United released a film designed to hurt Hillary Clinton, who was then running for president in the Democratic primary.
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When the film was challenged under limits set by the Federal Election Commission, a judge granted summary judgment to the FEC, and the Supreme Court took up the case. Alito then joined a 5-4 majority to change 100 years of election law, striking key aspects of federal law’s century-old limit on corporate campaign expenditures, opening the floodgates for special interests and corporate dark money to buy the outcome of national elections.
In the decade following Citizens United, according to TruthOut, entities animated or enriched by the decision, such as “social welfare” nonprofit organizations, nonprofit business leagues and super PACs, have together spent several billion dollars to influence federal elections.
Samuel Alito
Samuel Alito (Photo by Nicholas Kamm for AFP)
From a baseline of $32 million in 2010 (the year Citizens United was decided), billionaire spending on elections rose exponentially to $232 million in 2014, $611 million in 2018, then $881 million in 2022.
No SCOTUS decision — not even Dobbs — has been more controversial than Citizens United, which allows high wealth donors to spend hundreds of millions in “dark money” — cash that’s difficult if not impossible to trace back to a root source — to protect fossil fuels, the National Rifle Association and other lucrative and destructive right-wing causes.
Alito intentionally blurred the record
Responding to criticism about his trip with Singer and his failure to report it on his financial disclosures, Alito hasn’t addressed campaign finance or the pernicious effects of Citizens United. Instead, Alito delivered a misleading rebuke wrapped in entitlement.
On his failure to recuse, Alito claims he was unaware of Singer’s interest in at least 10 cases before the Court, even though Singer’s role was heavily covered by the media. He explained, “Mr. Singer was not listed as a party … The entities that ProPublica (which broke the story) claims are connected to Mr. Singer all appear to be either limited liability corporations or limited liability partnerships.”
Corporate entities, Alito well knows, do not typically include the names of directors, investors or major shareholders in case captions except in rare cases asserting personal liability, so this excuse was deliberately deceptive.
Alito also said he’s reviewed “hundreds of thousands” of petitions for certiorari review, falsely suggesting there were just too many cases for him to know about his fishing buddy’s cases.
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The exceptionally well-staffed Supreme Court hears only 100 to 150 cases each year, so Alito has heard 2550 cases at most over his entire 17 years on the Court, not “hundreds of thousands.”
He also invoked Supreme Court Rule 29.6 to legitimize his claim that staff — not he — checks for conflicts of interest, and that it is “utterly impossible” for his staff to search filings with the SEC to identify individuals with financial interests before the court.
Rule 29.6 requires disclosure of company interests, not individuals’ like Singer’s, and his staff didn’t go on a personal junket with Singer, Alito did.
Even if his misleading explanation(s) on recusal somehow passed the sniff test, Alito also recently voted to dismantle EPA climate protections, while his wife was profiting from fossil fuel sales on family land.
Right after Mrs. Alito leased her Oklahoma land for oil and gas production, negotiating profits of 3/16ths of the sales for the Alito household, Alito voted in West Virginia v. EPA to kneecap the EPA’s efforts to limit greenhouse gas emissions.
Failure to recuse costs lives
Alito and Thomas are in bed with donors protecting the deadly NRA and fossil fuel agendas. Justice Amy Coney Barrett comes from oil, too. Her father was heavily involved with the American Petroleum Institute for decades.
These justices, and any others with NRA or oil and gas connections, should automatically recuse from climate and gun cases. Their refusal to do so has had and will continue to have enormous life and death implications.
Over 600,000 Americans have died by gunshot since SCOTUS re-wrote the 2nd Amendment in the Heller decision.
As for fossil fuels, no industry has benefited more from Citizens United than oil and gas, whose expenditures on federal elections — including a massive decades-long disinformation campaign — quadrupled from 2010 to 2020 according to OpenSecrets.
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Even as the planet burns, Alito continues to double down on Citizens United; he regularly delivers speeches defending the nefarious outcome, while simultaneously disputing climate science. The oil-funded Federalist Society, equally dismissive of climate science and enamored of Citizens United, features a YouTube video on their website explaining how allowing corporations to influence elections is a matter of “free speech.”
Fossil fuel origins of climate destruction are scientifically irrefutable, even in oil-well Texas. When coastal cities are underwater and Midwestern crops refuse to grow, it will be up to a Supreme Court of the future to serve justice on “dark money” and its gilded beneficiaries such as Alito, Thomas, Singer and Leonard Leo, whose destructive legacy will be sealed in the history books.
Or… justices could consider their grandchildren, break the guns-and-oil suicide pact, and adopt a legitimate code of ethics.
As for Congress, which Alito says has no power over the Supreme Court when it comes to mandating strict ethics codes? One justice does not decide what the law is.
But don’t for a moment get your hopes up: In 2023 alone, 26 members of Congress have violated the Stop Trading on Congressional Knowledge Act of 2012, according to a Raw Story investigation, and financial conflicts among lawmakers are widespread. Attempts for Capitol Hill to get its own House in order have so far stalled.
Sabrina Haake is a columnist and 25-year litigator specializing in 1st and 14th Amendment defense. Follow her on Substack.
