SCOTUS Wants To Play Politics? Game On.

This is how we fight.

It’s time to stop pretending that Supreme Court justices are anything other than politicians. Rip off the band-aid.

In May, Prof. Steve Vladeck came on the podcast to talk about the evolving disaster of the Supreme Court. We debated whether it was appropriate to treat the Court as a wholly political institution, or whether we should instead encourage it to live up to its nobler ideals.

That was before the Trump immunity ruling on the last day of the term. It was before the Chevron disaster, and the bump stock decision, and the Jarkesy holding that will be used to dismantle the system of administrative law judges, and the City of Grants Pass decision criminalizing homelessness, and on and on and on.

That discussion is over. This court has now fully delegitimized itself, and, if it was ever the neutral referee of Chief Justice Roberts’s “balls and strikes” blatherings, that time is long in the rearview mirror. So it is good and appropriate for Democrats to start treating Supreme Court justices like the politicians they are.

Enter Senators Sheldon Whitehouse and Ron Wyden, who this week requested that Attorney General Merrick Garland appoint a special counsel to investigate Justice Clarence Thomas’s myriad ethical conflicts and failures to disclose gifts from his rich benefactors.

“The breadth of the omissions uncovered to date, and the serious possibility of additional tax fraud and false statement violations by Justice Thomas and his associates, warrant the appointment of a Special Counsel to investigate this misconduct,” they wrote in a letter detailing the revelations of corruption unearthed by ProPublica, among others.

For instance, in 1999, Thomas’s buddy Anthony Welters loaned him $267,230 to purchase a luxury RV. The interest on the note was 7.5 percent, and Thomas does appear to have made several $20,042 payments, denominated as “interest only.” In 2008, Welters forgave the balance of the note, which reportedly included most or perhaps even all of the principal.

That was both an ethical and a taxable event. If someone forgives money you owe them, that’s “ordinary income” on which you must pay taxes. But as a sitting Supreme Court justice, Thomas had an additional obligation to disclose this enormous gift on his 2008 Financial Disclosure Report. His failure to do so is an apparent violation of the Ethics in Government Act, 5 U.S.C. § 13101 et seq, which mandates that “any employee of the judicial branch of the Government” shall disclose income, including “income from discharge of indebtedness” and its source.

When asked about this, Thomas’s counsel Elliot Berke responded in a terse letter to the Senators that his client had “made all payments to Mr. Welters on a regular basis until the terms of the agreement were satisfied in full.” But he declined to comment further, citing “the separation of powers concerns it raises and the importance of preserving the independence of our federal judiciary.” The middle finger emoji is implied.

For the Justice Department’s edification, the senators also included a helpful table of undisclosed gifts, broken down by billionaire sugardaddy Harlan Crowe and “other donors.

Those donors probably just really enjoy Justice Thomas’s company. And it’s probably also just a coincidence that Justice Thomas penned a longass dissent in the immunity case suggesting that special counsels are illegal.

“Supreme Court justices are properly expected to obey laws designed to prevent conflicts of interest and the appearance of impropriety and to comply with the federal tax code,” the Senators wrote. “We therefore request that you appoint a Special Counsel authorized to investigate potential criminal violations by Justice Thomas under the disclosure, false statement, and tax laws; pursue leads of related criminal violations by donors, lenders, and intermediate corporate entities; and determine whether any such loans and gifts were provided pursuant to a coordinated enterprise or plan.”

Meanwhile over in the House, Rep. Alexandra Ocasio-Cortez, along with eight co-sponsors, moved to impeach Justices Thomas and Alito.

“Justice Thomas and Alito’s repeated failure over decades to disclose that they received millions of dollars in gifts from individuals with business before the court is explicitly against the law. And their refusal to recuse from the specific matters and cases before the court in which their benefactors and spouses are implicated represents nothing less than a constitutional crisis,” she said in a press release. “These failures alone would amount to a deep transgression worthy of standard removal in any lower court, and would disqualify any nominee to the highest court from confirmation in the first place.”

The resolutions accuse the judges of failing to disclose gifts and refusing to recuse from matters in which they had a personal interest.

As in all things, Justice Thomas’s behavior was the most egregious. He participated in multiple cases related to the January 6 insurrection and its aftermath, including the January 6 Committee’s suit over Trump’s presidential records, which included dozens of texts from Ginni Thomas to various Trump administration figures.

Here’s a memorable one she sent to Mark Meadows:

Biden crime family & ballot fraud co-conspirators (elected officials, bureaucrats, social media censorship mongers, fake stream media reporters, etc) are being arrested & detained for ballot fraud right now & over coming days, & will be living in barges off GITMO to face military tribunals for sedition. … I hope this is true.

“In consequence of Mrs. Thomas’s collaboration with then-President Trump to overturn the results of the 2020 Presidential election, Justice Thomas had a legal obligation under section 455 of title 28, United States Code, to disqualify himself from proceedings concerning that election and the endeavor to overturn it by litigation, force, or fraud,” the resolution reads. “Yet on multiple occasions, Justice Thomas participated in proceedings concerning the election anyway.”

The Alito resolution dings the justice for participating in January 6 cases after his wife repeatedly flew flags supporting the insurrectionists. It also faults him for “failing to disclose the gift of luxury travel and failing to recuse from hearing cases affecting the donor’s business interests” in a manner that “would cause a reasonable person to believe that he used his public office for his own private gain or for the private gain of the donor.”

To be clear, absolutely no one thinks that AG Garland is going to appoint a special counsel. And there is no universe in which this Congress actually impeaches a Supreme Court justice. This is all politics — and in a good way.

The current Supreme Court, and particularly Chief Justice Roberts, have benefitted from a false aura of legitimacy. They claim the mantle of impartiality, while kneecapping Democratic policies at will. They have systematically gutted voting rights, taken away women’s bodily autonomy, and given corporate interests every little thing their hearts desired. They routinely allow Republicans to steal elections via racial gerrymanders, and they just made it legal for presidents to do crimes.

Meanwhile their Republican allies affect shock and indignation at the suggestion that we add more justices or pass a Supreme Court ethics reform bill. They cry crocodile tears about intimidation when the justices are forced to face protesters, even as they defend the First Amendment right of a presidential candidate to call in troll storms on civil servants. They rail against a supposed “Deep State” of evil bureaucrats, while pretending that six Republican political appointees are neutral arbiters of truth. Call them the “Robe State,” or the “Rogue Justices,” or the “Judicial Terrorists,” or just THOSE CORRUPT BASTARDS.

It doesn’t matter! Just call them out. Because these judges are Republican politicians. They have chosen to play in the political arena. And that is how we will have to treat them going forward. It will forever be unthinkable to impeach a Supreme Court justice until we all start thinking it together.

Make noise. Move the needle. It’s the only choice we have.