Supremely Conflicted: Are the Justices Truly Blind?

by Donald Mayer | Jul 3, 2023 | Society and Politics

Don Mayer, July 3, 2023

The U.S. Supreme Court has wrapped up its 2022/23 agenda with the usual array of arresting (and sometimes controversial) opinions, including a notable set-back for affirmative action in the Students for Fair Admissions v. Harvard case. What’s so interesting about the current court is how the most elevated legal talent in the nation sees the same Constitutional language quite differently. In Students for Fair Admissions v. Harvard, for example, Justice Roberts and Clarence Thomas see the equal protection clause of the Fourteenth Amendment as commanding a kind of “color-blindness” in college admissions and beyond, while Justice Jackson sees the same clause as commanding a call to rectify current systemic biases.

 (A side note of some importance here: the nation seems to be at a tipping point when it comes to racial justice.  After the George Floyd murder and Black Lives Matter protests, the backlash was not long in coming from those who refused to see the existence of systemic racial discrimination in policing, and how today, the sorry legacy of slavery, poverty, Jim Crow, redlining, and other biased practices by the nation’s institutions denies many people of color a chance to advance socially and financially. By insisting on color-blindness as a better kind of equality, the majority fails to see the bigger picture, a kind of color-blindness in itself. )

Given that people ––and Justices –– see our current situation so differently, it seems fair to ask whether Justices are blind to the realities of today, or, in other words, biased in favor of their pre-existing attitudes and beliefs.  Bias, as the behavioral psychologists have proven time and again, is a common feature of human thought and action.  At the top of many courthouses in the United States, people can see the figure of Lady Justice, holding her scales, with her blindfold on (but sometimes not) in order to be objective in dispensing her judgments.  Blindfolded or not, the figure of Lady Justice is supposed to represent impartiality, or objectivity. But this is a difficult feat, indeed.

It’s hard enough to call balls and strikes in a baseball game.   In his confirmation hearing, Chief Justice John Roberts likened his role to that of an umpire.

“I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it’s my job to call balls and strikes and not to pitch or bat.”

We will return to the “balls and strikes” analogy later ––  it’s a truly terrible analogy, because in baseball, the strike zone is fairly well defined.  Watching Colorado Rockies games (which takes a strong constitution these days), you can watch the “Subaru strike zone” after the fact and see whether the ball was within the box as it passed the batter, or was just outside the box, or just on the line of the box (a strike!).  Those are three comparatively  simple situations; on the other hand, when you’re trying to interpret 1968 constitutional provision the words themselves do not speak with that kind of box-like clarity. 

And, as Clarence Page pointed out after the Students for Fair Admissions decision, his colleagues on the sports beat point out that there are “subtle but distinctly important standards vary with the umpire. They use different strike zones, for example, apply them flexibly, and have near-unlimited discretion in close calls.”  He continues: “What may seem like simple differences can lead to a heartbreaker by the end of the game. Judges, like umpires, have tremendous power in deciding close calls. For the sake of their own credibility, they should work with the rest of us to assure that we can have the best, most credible justice system possible — not just the best that money can buy.”

https://www.chicagotribune.com/columns/clarence-page/ct-column-supreme-court-dick-durbin-clarence-thomas-justice-alito-page-20230625-4doimjcvpzehrpbzij3mubbrxu-story.html

But Page is wrong to suggest that the Justices have been “bought.”  There’s no serious allegation that direct bribery has occurred.  It’s a lot more subtle –– but not all that subtle.  Consider the recent allegations of conflicts of interest involving Justice Alito and Justice Thomas.  (Justices Gorsuch and Barrett are also under scrutiny, but the allegations involving Alito and Thomas are indeed serious, and sobering.)

Over the past year, there have been numerous revelations that Justices Thomas and Alito have been given extravagant travel freebies by “friends,” billionaires who befriended them after their ascension to the high court, who want to see U.S. law trend emphatically in right-wing direction.

The Supreme Court stands at the pinnacle of the U.S. justice system. The nine tenured-for-life judges –– always referred to somewhat reverently as “Justices” –– must decide the most complex and difficult cases.   To be a judge (or a Justice) requires not only extensive knowledge of the law, but a kind of impartiality and objectivity that gives the public confidence that justice will be done –– by the Justices.

Where is that public confidence now?  Only 47% trust the judicial branch; the previous low was 53%.  The 40% job approval of SCOTUS is tied for a record low.  A record high 42% say that the Court is too conservative.

https://news.gallup.com/poll/402044/supreme-court-trust-job-approval-historical-lows.aspx

Another poll is even more dismal: public approval of the nation’s highest court has fallen to an all-time low in the run-up to the one-year anniversary of the court’s highly controversial decision to overturn Roe v. Wade, according to a Quinnipiac University poll released on June 28, 2023..

The poll found only 30% of registered voters approved of the nation’s highest court, while 59% disapproved. That’s the high court’s lowest approval rating since Quinnipiac started asking the question in 2004.

Only 10% of registered Democrats surveyed said they approved of the Supreme Court, compared with 53% of registered Republicans. Almost 7 in 10 registered voters said they thought the Supreme Court is “mainly motivated by politics” — compared with a fourth who said it is “mainly motivated by the law.”  In brief, only a fourth seemed to see Justices as objectively calling “balls and strikes,” instead of coming up with legal words to bolster their political leanings.

Political leanings, biases, predilections –– whatever you call them, they should not be part of a judge’s mindset; judges, and most of all Justices, must apply the law to situations where political preferences and philosophies can determine not only the outcome of a particular case, but can also set rules for how the entire country must act.   In undoing Roe v. Wade in the Dobbs decision, or in undoing affirmative action in the Harvard decision, the Justices are steering society in certain directions that many Americans disagree with.  To do so, they must be sure that their thought process is not swayed by factors outside of the law as it is written, or (to extend the balls and strikes metaphor), outside the rules of the game and the contours of the strike zone. Certainly they should not have a stake in pleasing certain people, or maintaining “friendships” that may affect their deliberations.

Yet some of the Justices are blind to the obvious appearance of a conflict of interest.  Suppose you have a “friend” ––who, by the way, became your “friend” only after you were promoted to the Supreme Court, and who is closely tied to organizations that routinely offer “friend of the court” briefs in key cases)–– who showers you with expensive gifts? How likely are you to rule against your “friend’s” values and positions?  It surely doesn’t require an outright bribe ––a ‘quid pro quo’–– for you to lean in your friends’ direction. 

Suppose you’re a traffic cop and see someone going 15 miles over the speed limit.  When you get their license and registration, they offer you $300 to not write the ticket.  Tempted? Succumbing to temptation might mean you fail to do your official duty; they would be corrupting you by offering a bribe to not do your duty.  But suppose you pull over a vehicle and discover that the driver is your friend in his brand new car, someone who has you over to his house to eat, drink and be merry, and who takes you to Bali on a private yacht or Alaska on his private jet for special luxury vacations.  You’re likely just to tell him to slow down. You haven’t taken a bribe, but your objectivity is clearly compromised.  But, you protest, you haven’t actually taken a bribe!

Such is the narrow, crabbed interpretation that SCOTUS has put on corruption generally.  See

Anita Cava and Brian Stewart’s article on Honest Services Fraud in the University of California Davis Law Review.

https://heinonline.org/HOL/Page?handle=hein.journals/ucdbulj12&div=4&g_sent=1&casa_token=&collection=journals

In brief, corruption includes far more than simple bribery, and ignoring serious conflicts of interest may be legal, but is still wrong.  Here is Merriam-Webster’s definition of a conflict of interest:

1. a conflict between the private interests and the official or professional responsibilities of a person in a position of trust

2. a conflict between competing duties (as in an attorney’s representation of clients with adverse interests)

Over the past year both justice Clarence Thomas and justice Samuel Alito that failed to disclose what business ethicists see as conflicts of interest.  Both Thomas and Alito accepted fairly extravagant gifts from billionaires who have made a habit of contributing heavily to the Republican Party and its politicians.  Two brilliant podcasts from Dalia Lithwick (Slate Magazine) highlight how neither Justice will admit that accepting such gifts might present an ethical conflict of interest.

Samuel Alito and the Billionaire

https://podcasts.apple.com/us/podcast/amicus-with-dahlia-lithwick-law-justice-and-the-courts/id928790786?i=1000617896579

Clarence Thomas and the Billionaires

https://podcasts.apple.com/us/podcast/amicus-with-dahlia-lithwick-law-justice-and-the-courts/id928790786?i=1000611923720

Both Justices have defended the non-disclosure of these gifts as within the existing ethics rules, but ethics experts beg to differ. Consider the following:

From the Guardian (U.K.)

https://www.theguardian.com/law/2023/jun/21/samuel-alito-undisclosed-gifts-billionaire-paul-singer-supreme-court

No one is saying that either Thomas or Alito have been bribed to reach a certain result in cases where their generous donors are actual parties.  But the entire point of providing Justices with generous luxury gifts is to cloud their objectivity, to make them “lean” in the direction that the billionaires would prefer.

As Jaime Boulle puts it, wryly asking why each Justice can’t have his personal billionaire “friend,”

“This isn’t quid pro quo — no one is trading favors or taking cash for judicial decisions — it’s like-minded people enjoying one another’s company and friendship. It is showering the most important allies you have with prestige and, crucially, the esteem of their peers. It’s creating a web of personal and emotional bonds in addition to political and intellectual ones.”

“Your beneficiaries are already on your side, of course — otherwise they wouldn’t be in the club in the first place — but they might be a little less willing to buck the views and prevailing sentiments of their fellow travelers. And if all this social scaffolding means that your justice is a little more likely to cast the right vote in the right case at the right time, then it is money well spent. Even better, there is more where that came from: more billionaires, more influence and more perks for the justices to enjoy while they attend to the work they were appointed to do.”

All of this is quite distant from any ethical innocence. Justice Alito gave a favorable ruling to his billionaire friend back in 2014.  Listen to Ruth Marcus, in a Washington Post op-ed from late June, 2023:

The resort at which he stayed, where rooms ran $1,000 a night, was owned by Arkley, a conservative California businessman and financial supporter of the Federalist Society. What is Alito’s relationship with Arkley? How could it possibly be acceptable to take this kind of gift?

The private-jet connection was even more questionable. At the time of the event, Singer, a hedge fund manager and major donor to Republicans and conservative causes, was embroiled in a high-stakes legal battle with Argentina, which had defaulted on its debt. Singer’s hedge fund was trying to force the country to pay up, in full. The dispute had already made its way to the Supreme Court once, the year before, and it was entirely foreseeable that the matter would be back before the court.

And so it was, eight times, including a June 2014 decision in which the court ruled 7-1, with Alito in the majority, for Singer’s firm. It ended up making Singer’s fund $2 billion.  Given that most Justices aligned with Alito, this may seem inconsequential: Singer’s fund would have made that money even if the Court had ruled 6-2.  But “recusal” ––- would seem to be appropriate where your “good friend” stands to make a lot of money if you vote in his favor.

To pretend that there is no conflict of interest is a kind of moral blindness, but not the kind of blindness that Lady Justice needs.

When ProPublica discovered the lavish gift giving of Singer toward Alito, the journal contacted Alito with a list of questions about their relationship.  Rather than answer their questions, Alito went to Rupert Murdoch’s Wall Street Journal and published an op-ed to the Wall Street Journal titled “Justice Samuel Alito: ProPublica Misleads Its Readers.” 

In his op-ed, Alito defended himself against ProPublica’s accusations of impropriety as a Supreme Court Justice and said the two claims levied against him — not recusing himself from cases involving Singer and not disclosing his trip — were invalid.

“I had no obligation to recuse in any of the cases that ProPublica cites,” Alito wrote, while a legal and judicial ethics expert said the opposite to ProPublica, noting that if she represented a client and learned after the fact that the judge had taken a gift or vacation from the other party in the case, she’d be outraged. “If I found out after the fact, I’d be outraged on behalf of my client,” Smith told ProPublica. “And, frankly, I’d be outraged on behalf of the legal system.”

Similarly, despite seven ethics experts having told ProPublica that Alito should’ve officially reported his trip, Alito said that he and other justices “commonly interpreted” the rule’s hospitality exception “to mean that accommodations and transportation for social events were not reportable gifts.”

Aside from his failure to recuse himself from cases and not officially reporting his trip, Alito’s refusal to respond to ProPublica and then publishing a personal response elsewhere won’t help the public’s growing concerns about the high court.”

How shall we go from Odor in the Court to Order in the Court?  We can hope that Chief Justice Roberts can corral his even more conservative colleagues to disclose potential conflicts of interest.  Congress can’t, because the Senate would have to pass the new ethics rules to make clear that rules for all other federal judges should also apply to Supreme Court Justices. And GOP Senators, solidly behind this “new” conservative majority, don’t want to rock the anti-Roe v. Wade boat, and might even enjoy the spectacle of liberal hand-wringing over liberal handouts from pro-GOP billionaires working the judicial sidelines to guarantee a Court that is consistently friendly to “business interests.”

https://www.npr.org/2022/09/02/1120692947/the-current-supreme-court-could-be-the-most-pro-business-yet

Some GOP Senators have actually attacked Democratic criticism of Thomas and Alito.  Regarding criticism of Justice Thomas, Sen. Lindsay Graham claimed ––

“This assault on Justice Thomas is well beyond ethics. It is about trying to delegitimize a conservative court that was appointed through the traditional process,” said Sen. Lindsey Graham, the committee’s ranking Republican.

https://www.usnews.com/news/politics/articles/2023-05-02/overhaul-of-supreme-court-ethics-runs-into-gop-opposition

(The “traditional process” is hardly consistent, though. President Obama’s nomination of Merrick Garland eight months before the 2016 election was blocked by then Senate Majority Leader McConnell, on the premise that “the people” should decide, but McConnell rushed through Justice Barret’s nomination by Donald Trump a mere two months before the 2020 election.)

Finally, we might usefully ask, “What is actually so conservative about buddying up to billionaires whose friendship is based on your position as a Justice of the Supreme Court?” How are “family values” and “traditional values” –– or support for democracy –– consistent with supporting plutocracy?

“Throughout human history, wise men have warned of the dangers of plutocracy. In Plato’s Republic, Socrates warned of the dangers of selecting captains of ships by their wealth. Teddy Roosevelt also warned, “of all forms of tyranny, the least attractive and most vulgar is the tyranny of mere wealth, the tyranny of a plutocracy.” Yet despite these warnings, America has gone from a democracy towards becoming, for all practical purposes, a plutocracy, moving away from a government of the people, by the people and for the people to a government “of the 1%, by the 1% and for the 1%,” as noted by the Nobel Laureate Joseph Stiglitz.”

(From the Diplomat, Sept 2020, by Kishore Mahbubani.)

https://thediplomat.com/2020/09/can-america-escape-plutocracy/

The Joe Stiglitz piece can be found in Vanity Fair, from March of 2011.  If anything, the U.S. has become more plutocratic since then.

https://www.vanityfair.com/news/2011/05/top-one-percent-201105

If traditional values embraced by the Framers of our Constitution include government of the people, by the people, and for the people (a phrase used by that great Republican President, Abraham Lincoln), then current conservatism has become morally blind, not only to how corruption actually works, but to some foundational values for the Republic as well.