The US Supreme Court will make crucial decisions this year

What happens when the highest tribunal in the land is itself under suspicion? The US is asking itself this question as its right-wing Supreme Court faces a tide of sleaze allegations ahead of a 2024 election in which it might have the final say.

Remember 2000, and the fiasco over “hanging chads”, the incompletely punched ballot papers? In the end, the Supreme Court ordered Florida stop recounting ballots in a knife-edge state vote. The ruling sealed victory for George W Bush over Al Gore.

The ruling was one of the most controversial – and consequential – in the court’s history.

But at least then, the nation’s highest court enjoyed a degree of public support. Approval ratings of more than 60 per cent suggested most people believed the justices were acting impartially.

Fast-forward to 2024 and another political crisis. Suppose supporters of Donald Trump cry foul in one or more swing states; crucial ballots arrive late, fraud is claimed – and disputed. One of these disputes, on which the outcome of the electoral college vote hinges, eventually ascends to the Supreme Court.

The Court will face its most momentous decision of all time: ruling on the outcome of a presidential election – and more immediately, whether or not to give back, to a newly vengeful and maniacal Trump, the keys to the White House and the country’s nuclear codes.

It will do so with little confidence among Americans in its ability to act apolitically and in line with the US constitution. By last July, after its decision to reverse Roe v Wade and axe women’s right to abortion, public approval of the court had plunged to just 25 per cent, a 50-year low.

The supposedly impartial Supreme Court justices rank even lower than Congress’s squabbling, grand-standing politicians.

“By now, it’s so obvious that some of the courts’ most important decisions have been made on political rather than legal bases,” says Harvey G Cohen, US cultural historian. “Public confidence in the court is collapsing.”

The Supreme Court makes pivotal rulings on the most profound moral and social issues facing the nation. The Court needs to appear impartial and unimpeachable. Instead, its increasingly reactionary verdicts appear out of sync with public opinion – and worse, its ethical standards seem to be sinking.

Luxury trips and Hitler’s teapot

The antics of one Supreme Court justice in particular, the ultra-conservative Clarence Thomas, have been repeatedly called into question.

Investigations show that Thomas has accepted gifts and luxury trips on yachts and private jets year after year from Harlan Crow, a Republican mega-donor, without reporting them on financial disclosure forms.

Crow, who collects strange memorabilia including paintings by Adolf Hitler and the Nazi dictator’s teapot, bought three properties belonging to Thomas and his family in a deal worth more than $100,000 – which Thomas never disclosed.

“It’s shameful. I know federal judges who tell me they would not dare accept dinner from someone,” says Cohen.

One of America’s most respected legal ethics experts, Professor Charles Geyh of Indiana University Maurer School of Law, told i that Thomas’s relationship with Crow was deeply concerning.

“There is no denying that Crow has a deep-seated philosophical interest in the ideological orientation of the Supreme Court, or that these lavish gifts have afforded Crow access to the Supreme Court’s senior-most conservative voice… the gifts in this case are breathtaking in their magnitude and go well beyond what anyone would call ordinary hospitality between friends,” he said.

Thomas also faced criticism after it was revealed that he had not recused himself from cases related to the 2020 election even though his wife Virginia “Ginni” Thomas is a Maga extremist who urged the Trump White House to overturn the results.

Many were appalled – but not surprised – to learn that Thomas cast the lone vote to stay an order directing former President Trump to obey a Congressional subpoena for records concerning his administration’s efforts to overturn the election results. The records at issue included correspondence between Justice Thomas’s wife and key White House figures.

“This, coupled with the Crow episode,” says Prof Geyh, “bespeak a justice who is, at a minimum, insufficiently attuned to his ethical responsibilities.”

Massachusetts Democratic Senator Ed Markey has called on Thomas, who previously survived sexual harassment allegations, to resign, saying that his “reputation is unsalvageable”.

Other Supreme Court judges, including Brett Kavanaugh and Ruth Bader Ginsburg have been accused of ethical lapses in recent years.

Recently, it emerged that Supreme Court justice Neil Gorsuch sold a property he owned shortly after becoming a justice, but omitted to say it was sold to the chief executive of Greenberg Traurig, one the country’s biggest law firms. Greenberg Traurig frequently has cases before the high court.

Questions have been raised about the court’s chief John Roberts’ wife’s work as a legal recruiter. Jane Roberts was reportedly paid millions of dollars for placing lawyers at firms, including some with business before the Supreme Court.

In a lacerating commentary on the Supreme Court and its chief justice, leading liberal commentator Lawrence O’Donnell said on MSNBC News on Wednesday: “John Roberts will never do anything about the corruption of Republican appointed Supreme Court justices and he will never do anything to correct the possible conflicts of interest and appearance of conflict of interests that his wife’s massive income derived from law firms.

O’Donnell noted John Roberts had enjoyed the public image of being possibly the most thoughtful, Republican appointed Member of the Supreme Court. “And the terrible truth might be that he is the most thoughtful, Republican appointed Member of the Supreme Court,” he said sardonically.

President Joe Biden and Clarence Thomas have history. In 1991, then-Senator Biden attacked Thomas during his swearing-in confirmation (over the slew of sex allegations against Thomas by intern Anita Hill). Thomas declared it was like “a lynching of uppity blacks”. As president, Biden has raised questions about Thomas over the luxury gifts scandal.

Another American academic, Todd Landman, a professor of political science at Nottingham University, was in the US during the 1991 Anita Hill hearings, chaired by Biden. “We were glued to our screens at that time, and were amazed that Thomas was nevertheless confirmed as a Justice,” he told i.

Despite the furore over the Roe v Wade verdict last year, Landman says that the Court does go through periods of political activism, which with its hardline, conservative majority, we are seeing now.

He notes, however, that the court’s recent actions – particularly on abortion – appear “to be out of step with majority popular opinion, a gap that hurt the Republicans in the 2022 midterm elections and which may well be an electoral liability in 2024”.

He notes that the ethical question marks hanging over the court are not related to changing political fortunes.

Unfortunately, the Court is allowed to police itself. “The main problem… is that the Supreme Court has no rules in place,” says Landman.

There are signs that politicians are waking up to the ethics crisis.

Senators Angus King, an independent from Maine who often votes with Democrats, and Lisa Murkowski of Alaska, a centrist Republican, now calling for new rules to police America’s most powerful judges, who are appointed for life.

Senator Sheldon Whitehouse is holding hearings to formalise ethical reforms for the Court in line with those that govern the Executive and Congress. Republicans are resisting them and claim this work is nothing more than a witch hunt.

But Landman thinks the ethics scandals present “a huge problem for the credibility of the court and will be part of the campaign issues for 2024”.

Even before that campaign kicks off, an imminent Supreme Court decision could sow seeds of chaos for 2024.

Right-wingers, including John Eastman, the lawyer who was a key player in the bid to overturn the 2020 election result in favour of Trump, have been pushing for the adoption of “independent state legislature theory”. This says individual states should be able to set rules in federal elections without being held in check by state constitutions. The Supreme Court is due to rule on a test case from North Carolina that will decide whether this is lawful.

There have been some hopeful signs that the justices will reject the theory. But other pundits think the Court will decide that a ruling on it is not appropriate.

“I at least want them to deal with the bomb before the 2024 elections,” said Justin Levitt, a professor at Loyola Law School.

“It [adopting of independent state legislature theory] would mean instant chaos for conducting congressional elections and presidential elections,” Levitt told Politico.

In so many scenarios, the Supreme Court holds the fate of the nation in its hands. But in few of them does it have the ethical authority to do so.

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