The Senate Judiciary Committee held a Tuesday hearing on “Supreme Court Ethics Reform” — as part of a discreditation campaign National Review’s Andy McCarthy likens to “a multifront jihad.” The hearing followed a series of hit-pieces released across various left-wing outlets based upon the slimmest possible evidence, all carefully calculated to portray the court’s conservative justices as unethical slimeballs.
The years-long, off-and-on discreditation campaign erupted afresh last month when ProPublica, a left-wing investigative outlet, published a series of eight pieces on Justice “Clarence Thomas’ beneficial friendship with a GOP megadonor” which it suggested “has raised questions [its own] about influence and ethics at the nation’s highest court.” Politico — the outlet responsible for originally publishing the leaked Dobbs opinion — followed suit on April 25 with a hit piece on Justice Neil Gorsuch. Next-at-bat was The New York Times (NYT), insinuating on April 30 that conservative justices improperly accepted teaching gigs at the Antonin Scalia Law School at George Mason University. The Washington Post continued the slow drip on Thursday, publishing a piece attacking Ginni Thomas, Clarence’s wife.
These pieces allege that conservative justices violated court ethics rules by selling property, traveling at another party’s expense, failing to make required disclosures, or not recusing themselves on cases where they had a conflict of interest.
In coordination with these attacks, Senate Judiciary Chairman Dick Durbin (D-Ill.) invited Chief Justice John Roberts to testify before the Senate hearing. Roberts declined, citing the “separation of powers concerns and the importance of preserving judicial independence.” In other words, a Senate committee lacks oversight authority over Supreme Court ethics. Roberts noted that congressional testimony by a Supreme Court justice is “exceedingly rare,” with “only two prior instances” involving “routine matters of judicial administration.”
To this reply, Roberts attached a fresh Statement on Ethics Principles and Practices, which all nine justices signed, refuting the allegations of financial misconduct and other ethical breaches. “Since [1991] Justices have followed the financial disclosure requirements and limitations on gifts, outside earned income, outside employment, and honoraria” of the Judicial Conference Regulations established in 1922,” said the justices. Among other requirements, the justices submit annual financial disclosure statements, are subject to restrictions on outside income, and must recuse themselves in certain cases.
The court reviewed these details because, it turns out, all the juicy ethics violations “discovered” by left-wing investigations weren’t hidden because they didn’t actually violate the ethics rules. In fact, many of the mudslinging claims have been directly refuted — ProPublica’s here, here, and here, Politico’s here and here, and NYT’s here and here (The Washington Post story was only published yesterday, but here is a refutation from last month of similar allegations against Ginni Thomas made in The Washington Post). The claims of ethical breaches are manufactured and disproven.
Ranking Member Lindsey Graham (R-S.C.) was incensed by the character of the hearing, which he decried as “a concentrated effort by the Left to delegitimize this court and to cherry-pick examples to make a point. … This is about destroying a conservative court.”
Perhaps the best evidence that these claims are trumped-up is that progressive justices do many of the same things — only without the left-wing smear articles. Justice Sonia Sotomayor didn’t recuse herself from a case involving Random House, from whom she received $3 million in a book deal. Sotomayor and Justice Ketanji Brown Jackson have amended financial disclosures. Justice Elena Kagan raised money for Harvard Law School. Former Justice Ruth Bader Ginsburg received a partisan award and a $1 million prize. Many justices had travel paid for by another party (often related to a law course they taught overseas).
Once the aura of suspicion is stripped away, many of the allegedly unethical behavior appears perfectly innocent. For instance, ProPublica’s investigation into the longstanding relationship between Justice Thomas and GOP megadonor Harlan Crow painted every financial transaction as nearly criminal influence peddling. But Third Circuit Judge Thomas Hardiman noted that Thomas was “not even in a position to help his friend [Crow] because his friend had exactly zero cases in the Supreme Court.” Considered in their proper context, the “unethical” financial dealings ProPublica discovered include such misdeeds as Justice Thomas housing his elderly mother. Can you believe this guy? Or — and this one’s a real doozy — “Harlan Crow and Clarence Thomas once conspired to aid a penniless widow.” That’s an offense almost more unforgivable than being a conservative.
As Graham points out, the Left won’t target any members of the court who vote the way they wish on abortion, elections, guns, or other pet causes. But conservative justices don’t even enjoy the benefit of the doubt.
“A word is necessary concerning security,” concluded the Supreme Court’s statement ominously. “Judges at all levels face increased threats to personal safety. These threats are magnified with respect to Members of the Supreme Court, given the higher profile of the matters they address. Recent episodes confirm that such dangers are not just hypothetical.” In the aftermath of the Dobbs leak, a pro-abortion radical plotted to assassinate Justice Brett Kavanaugh and left-wing protestors illegally picketed the justices’ private residences with impunity, while congressional Democrats and the Biden DOJ slow-walked additional security for members of the court.
In fact, there is evidence that Washington progressives were either hoping that one of the justices would meet an untimely end — thus eliminating the court’s conservative majority — or be intimidated into compliance with an extreme agenda. Then-Senate Minority Leader Chuck Schumer (D-N.Y.) set the tone for his party in March 2020, when he intoned from the court steps, “I want to tell you, Gorsuch; I want to tell you, Kavanaugh: You have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions,” earning a rare public rebuke from Roberts.
Targeting of conservative justices has been occurring for decades, at least since the nomination hearings for Robert Bork and Clarence Thomas — a “high-tech lynching.” Even Politico noticed in 2011, the era of Obamacare acrimony, how progressives executed a “concerted attack” against Thomas, then-Justice Antonin Scalia, and Justice Samuel Alito. For decades, leftists have understood the importance of maintaining a progressive majority on the Supreme Court, without which their undemocratic power grabs would fall to pieces.
Then came the Trump administration, during which Republicans nominated and confirmed three justices in only four years, installing a Supreme Court majority largely committed to applying the law as written — which is all it takes to count as a “conservative” jurist nowadays. This judicial accomplishment drove the Left apoplectic. They openly discussed schemes to pack the court in order to create a permanent progressive majority, which went nowhere despite a Democratic majority in Congress due to bipartisan opposition.
But the Left’s anti-court extremism reached its current fever pitch when the Dobbs decision overturned Roe v. Wade, indicating that the justices would not be intimidated. Retaking operational control of the court jumped to Objective Number One on progressives’ priority list. So, left-leaning news outlets have kept up a steady drip of articles calculated to impugn the integrity of conservative justices. Representative Alexandria Ocasio-Cortez (D-N.Y.) called last month for the House to investigate and possibly impeach Justice Thomas. A Washington Post columnist suggested in February, “At least in the short term, there is only one real option to rein in America’s overly conservative judiciary: shame.”
Leftists have chosen their lane: undermining the integrity of the Supreme Court. But that doesn’t mean Americans have to pay attention to their mean-spirited insinuations.
“If the public has a mistaken impression that the integrity of the court has been damaged, the fault for that lies with those who continue to level unfair criticism of the court and its justices,” said minority witness Michael Mukasey, former attorney general under President George W. Bush. “It is impossible to escape the conclusion that the public is being asked to hallucinate misconduct by justices who issue rulings with whom they disagree.”
Joshua Arnold is a senior writer at The Washington Stand.
