Surprise! Supreme Court's Conservatives Are Its Least Ethical

WASHINGTON, D.C.—For all the scorn heaped upon recently retired Supreme Court Justice John Paul Stevens, and all the left-baiting rhetoric used to detract from the candidacies of the two most recently appointed justices, Sonia Sotomayor and Elena Kagan, the fact is that at least three of the high court's most "reliable" conservative justices have all committed impeachable offenses.

Of course, AVN has been saying for years that Justice Antonin Scalia should be impeached, in part for prejudging government torture cases that might come before him, for bias both in favor of torturing Guantanamo detainees and against the detainees themselves, for failing to keep his religious views separate from his legal analysis, and for hypocritically describing himself as a "strict Constitutionalist" while nonetheless declaring that some forms of sexual speech are not protected by the First Amendment.

But if failing to recuse himself from the high court's deliberations regarding whether then-Vice President (and Scalia duck-hunting buddy) Dick Cheney had to release the list of energy producer lobbyists who took part in his 2001 National Energy Policy Development Group didn't get Scalia called on the carpet, it's doubtful that anything will.

But we can always hope.

See, thanks to similar questionable actions by Scalia's fellow conservative Samuel Alito and the controversy surrounding the political activities of Justice Clarence Thomas and his wife, Ginni, the whole question of judicial ethics has come to the fore—and it turns out that Scalia, Thomas and Alito have between them violated most of the ethical precepts (called "canons").

Take Canon #1: "A Judge Should Uphold the Integrity and Independence of the Judiciary." Scalia, of course, is a longtime violator of that one, dating at least from his 2004 declaration, "We are fools for Christ's sake" (suggesting that judicial rulings are not independent of his religious beliefs). More recently, at a talk at the UC Hastings School of Law, Scalia promoted the idea that the founders had intended that religion play a major role in government.

"Don't tell me that the framers of the American Constitution never had that in mind," Scalia said to the crowd of over 300 law students, deeming the United States superior to some other countries because it "does God honor."

Also, since the Cheney/Scalia duck-hunting trip included an unidentified "entourage" ("No cameras, please!") and their flight was provided gratis by Wallace Carline, owner of Diamond Services Corp., an oil services company, there's certainly an open question of whether Carline or any member of the "entourage" may have improperly tried to influence Scalia on, for instance, energy matters that might come before him.

And then there's Canon #2: "A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities." Surely, Scalia's hunting trip with Cheney just three weeks before the Court heard argument in the energy task force case, would violate that one.

And then there are the new Scalia outrages, which revolve around Scalia's apparent ignorance of the Constitution's Ninth Amendment, which reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

"The Constitution says what it says and it doesn't say anything more," Scalia told an audience of more than 250 lawyers, law students, faculty and community leaders during a luncheon lecture titled "Do Words Matter?" at the University of Richmond late last week. "For flexibility, all you need is a legislature and a ballot box. ... Unless we're governed by what the people have agreed to be governed by, we're going to be governed by judges."

Trouble is, to the extent that "the people" have certain unenumerated rights not specifically set forth in the Constitution, which the government "shall not ... deny or disparage," judges will be required to interpret such rights claims in light of other constitutional requirements and prohibitions—which means, of course, that indeed, the Constitution actually does "say [something] more" than "what it says." Scalia has, in the past, interpreted recognition of those unenumerated rights as a claim by other justices that the Constitution is a "living document," but it's unclear how the Ninth Amendment could be interpreted in any way other than that the courts have a role in deciding what those unenumerated rights are and to what extent they may be practiced.

"The due process clause has been distorted so it's no longer a guarantee of process but a guarantee of liberty," Scalia claimed. "But some of the liberties the Supreme Court has found to be protected by that word 'liberty,' nobody thought constituted a liberty when the Fourteenth Amendment was adopted. Homosexual sodomy? It was criminal in all the states. Abortion? It was criminal in all the states." (In fact, sodomy was considered a "common law" crime—something "everybody knew" was wrong—and there were few statutes against it, and abortion laws only began to appear in the 1820s, 30 years after the Constitution's ratification, and those only criminalized abortions after the fourth month of pregnancy. Anti-abortion laws only became widespread in the latter part of that century.)

Scalia, at his Hastings Law School talk, even came out against anti-sex discrimination laws, which as far as he's concerned, have nothing to do with the Fourteenth Amendment's prohibition against "deny[ing] any person within its [the United States'] jurisdiction the equal protection of the laws."

"Nobody thought it was directed against sex discrimination," he said. "If the current society wants to outlaw sex discrimination, hey, we have legislatures."

(We can't help but wonder how that view squares with Canon #3: "A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently"?)

The main problem with Scalia's claim is, before the passage of the Fourteenth Amendment, none of the rights enumerated (or unenumerated) in the Bill of Rights applied to the states, only to the federal government—which may be why Scalia has called for a repeal of the "due process" portion of the Fourteenth which makes that application.

Scalia made a similar case in late July to an audience at the Museum of the Rockies in Montana.

"Nothing that I learned in my courses at Harvard law school, none of the experience I acquired practicing law, qualifies me to decide whether there ought to be, and hence is, a fundamental right to abortion or assisted suicide," Scalia said during the talk, which was titled, "Mullahs of the West: Judges as Moral Arbiters." But under the Ninth Amendment, the "fundamental right" is already there; no need for Scalia to decide anything beyond whether the right needs to be regulated in any way.

But surely, Scalia's refusal to apply the Ninth Amendment—one-tenth of the Bill of Rights—to the cases and controversies that come before the Supreme Court must be an impeachable offense!

And finally, there's Scalia's view of the Seventeenth Amendment, whose repeal has been floated by various Tea Party members since shortly before the last election. That amendment took away the power of state legislators to simply appoint U.S. senators to their posts (Constitution: Article I, Sec. 3) and gave it to the electorate—and surprise, surprise: Scalia agrees with the Teabaggers.

"There's very little that I would change [about the Constitution]," he said. "I would change it back to what they wrote, in some respects. The Seventeenth Amendment has changed things enormously. We changed that in a burst of progressivism in 1913, and you can trace the decline of so-called states' rights throughout the rest of the 20th century. So, don’t mess with the Constitution."

Sadly, that view—that it's better for state legislatures to appoint the "representatives of the people" than for the people themselves to vote on such representatives—isn't an impeachable one.

But that's okay; Scalia, Alito and Thomas have all violated Canon #5: "A Judge Should Refrain from Political Activity."

Let's take Alito first. An article published on the ThinkProgress website on Nov. 11 reported that the previous evening the American Spectator, a far right-wing tabloid, had held a fundraiser—minimum ticket price: $250—whose keynote speaker was Tea Party supporter Rep. Michele Bachmann. The event was attended by such prominent Republicans as RNC chairman Michael Steele, hedge fund billionaire Paul Singer (a major contributor to Republican campaign committees and "527'-type attack groups), U.S. Chamber of Commerce board member William Walton—and Justice Samuel Anthony Alito Jr.

Bear in mind, American Spectator isn't your run-of-the-mill right-wing rag. It's been published since 1967, long before any Rupert Murdoch-owned media outlet began blathering conservative talking points to its deluded public, long before talk radio ever heard of, much less was dominated by, the likes of Limbaugh, Hannity, Beck and the cadre of right-pundits. It's currently owned by Alfred S. Regnery, a well-known publisher of hyper-conservative books by Newt Gingrich, Gov. Bobby Jindal, Dinesh D'Souza, David Limbaugh (Rush's brother) and many more. As a conservative publication, American Spectator is second only to William F. Buckley's National Review, which began publishing 12 years earlier. According to the Center for American Progress, American Spectator played a big role in the "Arkansas Project, a well-funded effort to invent stories with the goal of eventually impeaching President Clinton."

Two years ago, Alito headlined this annual fundraising dinner, using much of his speech to "rip[] then Vice President-elect Joe Biden as a serial plagiarizer," and last year, Alito headlined the fundraising dinner for the Intercollegiate Studies Institute (ISI), a right-wing "think tank," and raised more than $70,000 for them. Under Canon #5's "General Prohibitions," it says, "A judge should not ... solicit funds for, pay an assessment to, or make a contribution to a political organization or candidate, or attend or purchase a ticket for a dinner or other event sponsored by a political organization or candidate." American Spectator and ISI are clearly political organizations.

When asked by the ThinkProgress reporter whether Alito thought it was appropriate for a Supreme Court justice to take part in fundraising for an unabashedly right-wing magazine, he replied, simply, "It's not important."

But it is.

Scalia and Thomas, on the other hand, managed to avoid Alito's mistake of being too public about their political activities, but it was recently revealed by ThinkProgress and The New York Times that both had participated in a conference sponsored by oil barons Charles and David Koch held in Aspen, Colorado last June.

The conference, titled "Understanding and Addressing Threats to American Free Enterprise and Prosperity," had as its goals, "Attracting principled leaders and investors who will effectively defend our free society"; "Sharing best practices and opportunities to defend our free enterprise system from destructive public policies"; "Fashioning the message and building the education channels to reestablish widespread belief in the benefits of the principles of a free and prosperous society"; and "Building principled, effective institutions that identify, educate and mobilize citizens in pursuit of a free and prosperous society."

In other words, "funding of the conservative infrastructure of front groups, political campaigns, think tanks, media outlets and other anti-government efforts through a twice annual meeting of wealthy right-wing donors."

Or as the Times story put it, "[S]ome of the wealthiest people in America listened to a presentation on 'a vision of how we can retain the moral high ground and make the new case for liberty and smaller government that appeals to all Americans, rich and poor.'"

The Kochs' upcoming conference in Rancho Mirage, Calif., scheduled for Jan. 30-31, will have largely the same objectives: "[T]o review strategies for combating the multitude of public policies that threaten to destroy America as we know it. Those efforts ... include countering 'climate change alarmism and the move to socialized health care,' as well as 'the regulatory assault on energy,' and making donations to higher education and philanthropic organizations to advance the Koch agenda." Some of the conference's participants will include conservative figures Glenn Beck, Charles Krauthammer, Ed Meese, Ramesh Ponnuru, dozens of millionaires and billionaires ... and (at least until news of the conference broke in the press) Antonin Scalia and Clarence Thomas, both of whom had lectured at the Aspen gathering.

However, as Canon #4 ("A Judge May Engage in Extrajudicial Activities That Are Consistent with the Obligations of Judicial Office") explains, "A judge may engage in extrajudicial activities, including law-related pursuits and civic, charitable, educational, religious, social, financial, fiduciary, and governmental activities, and may speak, write, lecture, and teach on both law-related and nonlegal subjects. However, a judge should not participate in extrajudicial activities that detract from the dignity of the judge's office, interfere with the performance of the judge's official duties, reflect adversely on the judge's impartiality, lead to frequent disqualification, or violate the limitations set forth below." [Emphasis added]

Clearly, Scalia's and Thomas's appearance at and participation in the Koch Aspen event, whose main purposes included finding conservative candidates and creating political organizations to support and fund them, "reflect adversely on the judge's impartiality"—and they should be impeached for having participated.

But Justice Thomas has an additional problem to worry about: His wife Virginia.

Just about one year ago, Ginni Thomas founded the Tea Party-friendly group Liberty Central, largely with a nest-egg of $550,000 supplied by two anonymous donors (thanks, Citizens United!) There's no question that Liberty Central is a right-wing political organization, since articles on the website have "described the 'tyranny' of the Obama administration and featured (briefly) a memo, purportedly signed by Ginni Thomas, describing Obama's 'unconstitutional' health care legislation"—a memo to which Thomas's name, she later claimed, had been added without her knowledge ... on her own website! The website she founded!

"She's a living, breathing appearance of a conflict of interest, and the remedies are just as obvious," opined MSNBC commentator Keith Olbermann. "Either she must reveal the names of her donors and everyone employed by, affiliated with or donating to or donated to by Liberty Central, or Justice Thomas must resign from the Supreme Court. Otherwise whatever effectiveness he has on the Supreme Court will be reduced to a pathetic  joke."

That would have been our assessment as well ... but Ginni Thomas took a third approach: Just one week ago, she announced that she would "step down" from her leadership role in the organization she founded and take a "limited role" in the organization "so that Liberty Central can continue with its mission without any of the distractions," Thomas's spokesperson Caitlin Carroll said—but the problem remains: How can her husband Clarence possibly take part in deliberations on the current lawsuit against Obama's healthcare bill or on cases involving any other legislation or conservative cause on which Liberty Central has taken a position? And if he does, wouldn't that be grounds for his impeachment?

Bottom line: Conservatives talk a lot about ethics in government, but their three highest-ranked judges clearly have given ethics little or no consideration.