It’s the last week of September, which means two things in Washington, D.C.: Republicans are threatening to shut down the government, and the Supreme Court is preparing to return on the first Monday in October. There’s a dark cloud hanging over the court this session, thanks to the many and varied public scandals swirling around Justices Clarence Thomas and Samuel Alito, just as the court is once again facing some momentous decisions.
The court is holding at its lowest public approval rating ever—40%, according to Gallup. Before the court went on a partisan rampage with its new conservative majority, the approval rating averaged around 51% in Gallup polls. Considering that the court didn’t feature prominently in people’s daily lives before, that makes sense. It was an institution that rarely made big news and didn’t do real harm; everyday Americans just weren’t thinking about it that much.
That all changed with the three Donald Trump appointees, and the court’s immediate hardcore partisan turn. Another likely factor is reporting from ProPublica and other outlets detailing the extent to which Thomas and Alito are tied to dark money maven Leonard Leo and his network of influential billionaires. The lavish gifts and trips both justices received from various billionaires, including Harlan Crow and Paul Singer, and the fact that both justices failed to disclose any of it are a black mark against their personal integrity, and that of the whole court.
That reporting also means both Thomas and Alito should be recusing themselves from at least three of the major cases they will hear this term. One is the upcoming Moore v. United States, which could result in a potentially far-reaching challenge to the nation’s tax code. Both Alito and Thomas have significant potential conflicts of interest in that case—Alito because of his close personal relationship with the attorney who will argue it, and Thomas because so many of his generous billionaire friends who take him to nice places stand to significantly benefit from it. Alito has already refused to recuse.
Another upcoming case that Alito should not rule on is Consumer Financial Protection Bureau v. Community Financial Services Association of America, in which payday lenders are trying to have the CFPB essentially dismantled. The lenders are mad at a rule from the CFPB that says lenders can’t keep trying to take repayments from borrowers’ bank accounts after two consecutive attempts fail because of insufficient funds. The CFPB was trying to save borrowers from having bank fees pile up. The CFSAA decided to go scorched earth and argue that the CFPB can’t make or enforce this rule because the whole bureau is unconstitutional.
The potential ramifications of it are immense: If the argument the loan sharks are bringing prevails, the CFPB and other agencies created by Congress, including the Federal Reserve Board, the Federal Deposit Insurance Corporation, and the Office of the Comptroller of the Currency, could be declared unconstitutional.
Singer, Alito’s billionaire fishing buddy, stands to richly benefit if the court decides in favor of the lenders. According to The New Republic, Singer “has a hedge fund that holds at least a $90 million stake in financial companies that would stand to benefit were the court to rule against the CFPB.” That fund is Elliott Management, which holds Fidelity National Information Services, a firm that has had more than 5,100 consumer complaints lodged against it with the CFPB.
The court will also consider Loper Bright Enterprises v. Raimondo, a massive case about how government agencies work that could potentially overturn decades of legal precedent set by the 1984 case, Chevron v. National Resources Defense Council. That ruling held that courts should defer to government agencies' interpretation of an ambiguous statute as long as that interpretation is reasonable. It’s been used dozens of times, particularly to enforce environmental protections. Powerful interests, like the Koch network, have been fighting it since 1984. The Loper case will be argued by Koch network staff attorneys for the plaintiffs.
That makes the most recent reporting from ProPublica particularly relevant. It details Thomas’s “yearslong, personal relationship with the Koch brothers” and the many Koch events he has participated in. Those events have included fundraisers where Thomas has been offered as a draw to attendees.
“The Koch network has challenged Chevron in the courts and its lobbyists have pushed Congress to pass a law nullifying the decision,” ProPublica reports.” It has also provided millions of dollars in grants to law professors making the case to overturn it.” Some of those millions of dollars could have been raised at the same events featuring Thomas.
Since Thomas has been hobnobbing with the Kochs, he’s had a personal reversal on Chevron. In 2005, he actually wrote a majority decision upholding and expanding government agencies’ regulatory power under Chevron. In 2020, he reversed himself in strong terms. “Chevron compels judges to abdicate the judicial power without constitutional sanction," he wrote in 2020.
Thomas and Alito should not be deciding these various cases, but there is currently no way they can be forced to recuse. Chief Justice John Roberts can’t make them do it because he has no enforceable code of ethics for justices. It’s up to the individual justices to decide whether they believe they have a conflict and should recuse. Neither appears likely to do that.
That, and the distrust the public has toward the court, should be enough for Roberts to get serious about developing an enforceable code. It also means that the Democratic Senate needs to keep pressure on Roberts. Public scrutiny on the court seems to be the only thing that tempers the court’s actions.
There was an example of that Tuesday, when the court refused to block its own order directing Alabama officials to create a second congressional district representing Black voters. Alabama’s Republican officials, working with judicial villain Leonard Leo, reportedly believed that Justice Brett Kavanaugh was ready to reverse himself on this voting rights decision, and that he would do so in the shadow docket—on emergency appeal, with no hearing and no arguments.
At least the court majority learned the lesson of using the shadow docket to issue radical, precedent-exploding decisions. They stopped doing that after significant public blowback. The new scrutiny on the justices’ ethics has to be weighing on them as well—at least those justices who aren’t named Thomas or Alito.
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