Thomas, Alito and Christmas Cookies

You have heard about the private jet and yacht trips given to Clarence Thomas, the jet trips given to Samuel Alito, etc. The stories of this type of absolute impropriety are seemingly endless.

Senior Massachusetts District Judge Michael Ponsor has penned an op-ed in today’s New York Times: in which he discuses the acceptable limits of what federal judges can take as grift. It is quite good and not very long, I’d suggest a read of it.

What has gone wrong with the Supreme Court’s sense of smell?

I joined the federal bench in 1984, some years before any of the justices currently on the Supreme Court. Throughout my career, I have been bound and guided by a written code of conduct, backed by a committee of colleagues I can call on for advice. In fact, I checked with a member of that committee before writing this essay.
The recent descriptions of the behavior of some of our justices and particularly their attempts to defend their conduct have not just raised my eyebrows; they’ve raised the whole top of my head. Lavish, no-cost vacations? Hypertechnical arguments about how a free private airplane flight is a kind of facility? A justice’s spouse prominently involved in advocating on issues before the court without the justice’s recusal? Repeated omissions in mandatory financial disclosure statements brushed under the rug as inadvertent? A justice’s taxpayer-financed staff reportedly helping to promote her books? Private school tuition for a justice’s family member covered by a wealthy benefactor? Wow.

This is FAR beyond “the appearance of impropriety”, it is actual impropriety. Any judge and/or lawyer with even an ounce of ethics knows this, and it is patently obvious. It is wrong.

Let me give you an analogy that demonstrates how absurd Thomas and Alito really are.

Many, many years ago, a junior partner in our firm decided to be nice to the local county level judges we practiced in front of. So she got a bunch of boxes of Christmas cookies from a local custom cookie place and tried to deliver them to the pertinent judges for Christmas.They were just local superior court judges, not SCOTUS level. They turned them down, and there were a bunch of cookies suddenly in our kitchen and lounge.

There were a lot of attorneys, including me, both prosecution and defense, that used to drink at a local downtown dive bar after 5 pm. Judges, both federal and state, came in too. The lawyers always swapped rounds. But not the judges, they always paid for their own.

Nobody in the world would have carped about it if the judges would have eaten the cookies, nor had the judges gotten a free drink. They just did not. It was pretty admirable.

And now, when such things should be far more apparent, we have a Supreme Court that thinks they are entitled to the graft and grift. Do I think that makes them “corrupt” per se? I do not know that, we shall see how it all plays out further.

220 replies
    • Codewalker says:

      Before a sales meeting with a university IT staff we were told: “don’t bring us a thing. Not donuts, not pens, not cups, not hats. If you come with any of that stuff, the meeting is over.”

      No gray area. An IT sales call.

      [Welcome to emptywheel. PROBLEM: someone used the name “codewalker” (lowercase c) to comment back in 2018. They used a fake email address. You have a choice of confirming it was you and agreeing to use one of Uppercase C/lowercase c C/codewalker going forward, or using an altogether new username which is unique and contains at least 8 letters. Thanks. /~Rayne]

  1. Rugger_9 says:

    What’s really fascinating in a hypocritical sort of way is that these busted Justices feel they are the principal keepers of ‘law and order’ even before adding in the religious component for some of them. In this policy they mirror the current GOP in general even though anyone paying any attention sees it for the whale dung it is.

    • BriceFNC says:

      Yep. You pull yourself up by your bootstraps while I get richer on grift and graft.

      [Moderator’s note: If you’d like your comments to avoid moderation, check your Name and Email fields for typos like “BriceNC” instead of “BriceFNC”. I won’t fix the next one. /~Rayne]

    • earlofhuntingdon says:

      Thomas seems to have misunderstood some of the many trials he experienced in his rise to the top. Affirmative action may have helped him into Yale Law School, for example, despite being a top graduate of Holy Cross. But it’s probably not what kept him from the kinds of white shoe, big law firm work he expected.

      His expectations may have been unrealistic for a middle-of-his-class 1974 graduate at YLS. But his inability to win top jobs was much more likely to have been owing to pervasive racism among elite employers, the very thing affirmative action was meant to address. He seems determined to blame those who would combat racism rather than the racism pervasive among those he most aspired to join.

      • RipNoLonger says:

        Having only watched some of the Anita Hill hearings (at least twice) and a recent biopic on Thomas, I wonder if some of those white shoe, big law firms, didn’t see that Thomas might not be a good fit on levels such as personality, getting along, accommodation, etc. Perhaps those firms saw that Thomas would be a problem down the road – just like he is on the SCOTUS.

        • bmaz says:

          A friend, and their firm, were one of Anita Hill’s attorneys. They certainly believed her. And, trust me, they were a very big firm.

        • posaune says:

          That’s nice to know, bmaz. I always believed Anita Hill. She had nothing to gain personally and everything to lose. Utterly courageous.

  2. Rollo T says:

    Yes it is corrupt because it reduces the public faith and trust in the justice system which is corrosive in a variety of ways.

  3. ToldainDarkwater says:

    It’s amusing that you should mention Christmas cookies just a couple of days after I learned that an aide to Justice Thomas was taking payments for his Christmas Party. Or something like that.

    Now, I haven’t ever charged people to show up at a Christmas party, though they often bring potluck. But maybe in other circles, such as Justice Thomas’ people chip in money instead of casseroles?

    • bmaz says:

      Yeah, exactly. Bringing something to an innocuous potluck is not the same as this stuff. I have been to parties, both winter and pool in the summer, where I brought a bottle of some spirit. Cannot believe they ever knew who brought what, so that is different. Thomas and Alito knew exactly what was going on.

      • Estragon says:

        It’s really not that hard! Pay for your own vacations! Sell your moms house in an arms length transaction to a bona fide purchaser who you don’t know personally! Pay your own ward’s tuition!

        Asking for money contributions to your own Christmas party is bizarre and to me is illustrative of how many zero fucks Thomas gives about the appearance of impropriety.

        FFS, kagan turned down a basket of lox and bagels from her former students! I’ll bet you John roberts, whatever his other sins, pays for his own damn Christmas party!

        • earlofhuntingdon says:

          It’s worse. Clarence and Ginny are millionaires. They helped his elderly mom stay in her own home and could have kept on doing so. It appears that it was just easier for Clarence to accept a billionaire’s suggestion that he take over the family burden.

        • earlofhuntingdon says:

          Dick Cheney would be the first to agree that making oneself immune to the law is an important measure of power, and a necessity if one intends to foment a quiet rebellion. But I think Clarence is also a miser, a trait he also expressed in his willingness to let a billionaire pay for the private school tuition for his de facto adopted son.

        • Doug R100 says:

          His “son” for all intents and purposes-except when filling out forms, of course.
          (rayne: I hope my “new” name meets the guidelines)

        • notjonathon says:

          John Roberts has his own ethical issues, given that his lawyer wife has been enriched to the tune of some ten million dollars by people with business before the court.

        • Ed Walker says:

          He disclosed it as “compensation” instead of commissions, hiding the corruption. Notice how this one has disappeared from public discourse.

        • bmaz says:

          As long as disclosed, I don’t care what JGR’s wife does. She, and they, are entitled to that. Full transparency please though

        • Elvishasleftthebuilding says:

          One of the things that most interested me about the Christmas party revelations was that they came about because the guy who was collecting money in Justice Thomas’ office failed to lock down the security on his Venmo account. If you don’t do that, people can read what you pay and what you receive (though I’m not sure that amounts are visible) and the associated memoranda. I’m sure that this is something that divorce lawyers know a lot about.

        • AaronWardEsq says:

          Actually people paying for the christmas party is the way it’s supposed to go.
          “We spent $125 per person on the office xmas party”
          “I will venmo you my $125 share.”
          this is not corruption.
          all the other stuff (moms house, trips with harlan, private plane use) is corruption.

      • nord dakota says:

        When I was in college, on Thanksgiving break a lot of us whose homes were too far away decided at 4 am that morning (when the beer was all gone) to have a potluck Thanksgiving but obviously too late for the official day. Everyone went to their dorms and off campus places and nobody heard from again until late Friday afternoon, when a trickle and then flood of people showed up at the designated off campus house (had to have the grocery store saw a frozen turkey in half as there were no fresh ones and needed to hurry that bird). With no potluck assignments, it was an amazing success.
        The next year, two of the roommates in the same off campus house (which housed successive students) decided it needed to be organized and required cash deposits. It was a very boring Thanksgiving and a fraction of the people attended.
        Thomas, as I understand, is not terribly wealthy, but if he had actual friends he could have had a genuine party.

    • Tracy Lynn says:

      Years ago a friend would host a cookie exchange during the holidays. Everyone would bring homemade and in a few cases, good store-bought cookies and an extra container.

      We all would take a cookie or two from each container. There were usually over 100 people — thus, lots of cookies.

      There were always a few public officials at the parties — but no judges — who would participate.

      Obviously, this was pre-COVID.

      • Marc in Denver says:

        And we are talking about local trial court judges who are saying “no” on the off chance that someone might possibly have something happen that would bring them to that judge’s court. As opposed to the SCOTUS judges, who by the very nature of their job, affect a wide swath of people’s rights and interests in every case.

      • nord dakota says:

        We had a municipal judge who took over when the longtime city judge (we had just one) retired, then election was coming up in several months.
        My son had a traffic ticket he wanted to fight. We were appalled that on a kind of window shelf where you could fill out your paperwork there was also a petition to get him on the city ballot. In full view of the clerks, the bailiff, and the city prosecutor.
        I assume someone else had put the petition there but it was still fishy.

  4. ApacheTrout says:

    “The road to perdition starts with the free cup of coffee.”

    Given the brazen shrug from Alito, Thomas, and Roberts AND in consideration of the seemingly purposeful shadow docket strategy, I’m wondering if the patrons are giving their ‘free cups of coffee’ to some judges of lower courts. I don’t have anyone in particular in mind, but if I were ProPublica, I’d start sniffing around some of the circuits.

    • BirdGardener says:

      This is part of what gets to me: even as a lowly federal employee, I knew —we all knew!— that we couldn’t accept gifts of any kind from the people our agency served, however small, not even a cup of coffee. And SCOTUS justices think it’s fine to accept enormous gifts from people with business before the court?!! They’ve deluded themselves into thinking they can’t be influenced by this kind of indirect bribery, and it is definitely a delusion.

      • timbozone says:

        I doubt they’re deluding themselves with graft. It’s more that they’re trying to delude their “ideological” supporters with corrupt rationalizations…and for corrupt purpose.

    • earlofhuntingdon says:

      In the cases of Thomas and Alito, they’ve been enjoying Kopi Luwak by the pound, served by their hosts in gold coffee pots, and they get to keep the pots. Souvenirs exchanged among good friends.

      They know the rules they’re breaking, they think they’re entitled to break them, and they’re thumbing their noses at the rubes who think otherwise. John Roberts’s response: Meh.

      • LeftsidePortland says:

        Given that Kopi Lowak is “processed” through an animal’s butthole, this is truly an apt metaphor.

      • Bombay Troubadour says:

        Nice reference to Nicholson’s Bucket List coffee.

        Alito and Clarence, so smug about the masses and media questioning their supreme decisions.
        Chief Justice Roberts, just an impartial umpire calling balls and strikes. But yet the outcome is so predictable on these very thorny issues.
        Im waiting for the long arc of justice to reverse its current bending direction.

        • DoctorDoom says:

          I’m going to use your post as an excuse to rant about Roberts’ balls and strikes analogy. I think Roberts is smart enough that the comment was honest. Students of baseball know that defining the strike zone is perhaps the single most subjective, variable, and impactful element of umpiring. And it is particularly easy for an umpire to call different zones depending on which team is at bat. Yet, at the time the press and the Senate let Roberts’ analogy slide without comment, even though he had just admitted that he would be ok with acting in a manner that might allow the scales to be tilted. I am not saying that Roberts was signaling corrupt intent from the outset of his SCOTUS tenure, but rather that all those charged with scrutinizing him failed to think through what he said. Even now, the statement is interpreted as a promise of ethical behavior when it clearly is not that.

      • earlofhuntingdon says:

        It would have been a nice riff off the GOP mascot, if I had referred to Black Ivory Coffee, fermented in the guts of Thai elephants, and the most expensive coffee on the planet.

    • confucious_way says:

      The lower courts are bound by an enforced written code of conduct. Those judges *can’t* get away with the shit alito and clarence sale do.

  5. Doctor Cyclops says:

    I remember when my old boss spotted a judge whom we knew trudging through the rain without a hat and stopped to offer him a lift. He said, “The court cannot accept a lift from counsel.” I’ve never forgotten that.

    • BirdGardener says:

      That’s a great story! That judge understood.

      This is part of what gets to me: even as a lowly federal employee, I knew —we all knew!— that we couldn’t accept gifts of any kind from the people our agency served, however small, not even a cup of coffee. And SCOTUS justices think it’s fine to accept enormous gifts from people with business before the court?!! They’ve deluded themselves into thinking they can’t be influenced by this kind of indirect bribery, and it is definitely a delusion.

      • RMD says:

        The judges thinking may run along these lines:
        “I already agree with my benefactors, so, I’m not voting any differently than I already would otherwise. So, in a sense I’m not bought…I’m owned. Oh, and do send more grifts, please.”

  6. Bears7485 says:

    Why haven’t we seen impeachment inquiries in the House? These Justices admitted that they received benefits and said “Trust us, we’re above board”.

    FPOTUS and now SCOTUS have proven that it’s imperative that the unwritten rules should no longer be unwritten.

        • Rayne says:

          Actually, if you start a comment with “Actually,” you had better bring the goods.

          Tell me how an author promoting books to increase education about their pet issues including a biography on how an ethnic minority woman became SCOTUS is the same as multiple all-expense paid vacations or having one’s wedding paid for by persons with cases before SCOTUS. Book sales volumes help prioritize where authors go for book signings, in case you didn’t know that.

          Really annoyed about this crap because the book We Dissent about the Dobbs decision should be widely disseminated and read.

        • NkcEd2023 says:

          Noted on beginning with actually.

          As Rollo T stated above because those book sales increase author’s bank account. If a cup of coffee or even a lift is inappropriate then money is definitely inappropriate.

          Unless all financial gain from book sales was donated. Even then, that still smashes “even the appearance of”.

        • Rayne says:

          Are you saying SCOTUS jurists couldn’t also do any other work for pay — say as an educator — even if the work isn’t for entities with cases before SCOTUS? Where in the Constitution does it say jurists may not be paid for any work unrelated to cases before them? Writing is self employment.

          Your beef shouldn’t be that a jurist earned money from writing a book. It should be more narrowly focused on how publishing a book might influence the jurist — in this case, both Sotomayor and Gorsuch should have recused themselves in a case related to their publisher’s parent corporation. But earning money from writing books is not inherently unethical.

        • NkcEd2023 says:

          Yes, that is exactly what I am saying. If a jurist is sitting on a bench, any work that would provide a source of income would be corrupt by virtue of that source of income eroding public trust. A jurist without a secondary source of income (broadly defined) eliminates any doubt that undue influence, even the perception of it, tainted court proceedings.

          I do not agree with your framing regarding book proceeds. “Special interests” has layers of complexity and sophistication to obscure, deflect and distract from money trails. A books sale in the end is not just a book sale when it comes to SCOTUS or any other jurists.

          If lower court judges practice not even accepting a lift, SCOTUS judges should not have a secondary source of income (broadly defined). In now way am I equivocating with what Thomas, Alito and Scalia (on a similar note, no fucking way Scalia could afford his last trip to the Cibolo. I wouldn’t be surprised if Crow was financing Scalia as well) have done.

        • NkcEd2023 says:


          And when you sit on the highest court in the US with literally with no mechanism to check, with consequence, unethical behavior, any source of income beside that of SCOTUS pay check is corrupt. Free speech or not. Book sales for charity or personal enrichment. It is a slippery slope.

          Just ask Thomas and his “I collect statues of mass murders benefactor”.

        • Ravenclaw says:

          Accepting a gift is entirely different than having a part-time side job. The justices are explicitly permitted to engage in teaching. And as for writing – why not? Admittedly, having your staff help to promote her (non-legal) book was not a good move. But it doesn’t raise questions about undue influence. That would be true only if she started hawking a thousand copies at a time to people with business before the court. (Something elected officials often do with donors as a way of getting personal cash.)

        • NkcEd2023 says:

          While a meaningful distinction, it nonetheless arrives at the same finality. It is income subject to the appearance of.

          If SCOTUS justices want to write, great. Do it for free or proceed 100% of sales including advance signing monies, royalties etc. But they dont.

          Questions of undue influence are only raised AFTER money (or anything of value in the present or future for themselves or family/friends etc.)

          As for your hawking a thousand copies, that is just negotiating the extent of corruption. Still corruption in the end.

          Ridding the appearance of influence is the only antidote to the ridding this corrupt SCOTUS. The liberal justices either remaining quiet or partaking is book deals is corruption, of a lesser degree. Still corruption.

        • earlofhuntingdon says:

          Governance is a contact sport. And the line for sparkle ponies is, well, look for the longest line.

        • Ravenclaw says:

          Arrant nonsense. Next you’ll be saying that university professors shouldn’t accept royalties on textbooks, police officers shouldn’t provide security for events in their off hours except pro bono, and schoolteachers shouldn’t do tutoring for pay in the evening. Yes, there is a line one should not cross, and yes, there is undoubtedly a “zone of uncertainty” between what’s okay and what’s not. It’s worth asking whether a “side hustle” is legitimate or a screen for graft, for example. But there is a qualitative difference between receiving gifts from people who want you to behave in a certain way and engaging in honest toil for which members of the general public are willing to pay.

        • confucious_way says:

          > Your beef shouldn’t be that a jurist earned money from writing a book. It should be more narrowly focused on how publishing a book might influence the jurist

          While I’m fine with Sotomayor writing a book and doing the usual author circuit things, there does exist an established practice of PACs buying a ghostwritten book by the pallet-load as a vehicle for shoveling money towards the “author”. The books are then given away to the PACs donors or anyone else who will take them.

          I am in no way insinuating that this has taken place re Sotomayor, though I do expect to see it in my lifetime with one of the recent GOP appointees.

        • bmaz says:

          Let me give you a little hint: Do NOT roll in here from nowhere and tell us what to do, think or write. Get lost with that crap.

          You are “in no way insinuating”. No you are flat out stating. Don’t do that here. Ever.

        • confucious_way says:

          No, I’m making that point that while Sotomayor authorship looks fine to me and folks do have a write to express themselves via the written word, mass purchases of books have been known to be used to buy influence with government figures or those adjacent to them. And I specifically said ghost-written.

          > and tell us what to do, think or write

          I am at a loss as to how my comment can be interpreted as any of that. Perhaps you could be specific?

        • Shel313 says:

          Wow. A bit proprietary, no? I’m new here, but based upon the warm, welcoming atmosphere, I think in the future I’ll consider this site “read only”. Examples given here of other professions doing side work just do not compare to SCOTUS. Both educators and cops are subject to pre-existing, clearly defined chains of command, as well as written codes of conduct. My husband is a trial lawyer for a large firm. Before accepting a case, attorneys must jump through hoops to make sure that there are no conflicts. SCOTUS has no enforceable, external review process governing their ethical conduct. We all know that some justices are exploiting that, and we each have a right to an opinion about what we feel is acceptable. YMMV.

          [Welcome to emptywheel. Should wish to continue commenting, please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Suggestion: check the site’s About page noting carefully the contributors as some of them are also moderators. Thanks. /~Rayne]

        • bmaz says:

          And, yet, you made your seminal initial comment just to bitch at us? Over an interaction with a completely separate commenter? Or are you connected?

          How about contributing in good faith? Maybe try that.

        • Bombay Troubadour says:

          It’s hard to make a scotus justice understand, when his luxury vacations depend on him not understanding.

      • Rayne says:

        It wouldn’t even leave a committee were any representative to draft and submit a bill of impeachment.

        Bears7485 needs to spend a little more time thinking about which party has corruptly seated some of these equally corrupt jurists, and which party now holds the majority in the House and enough seats in the Senate to make conviction post-impeachment just as impossible.

        • earthworm says:

          “Bears7485 needs to spend a little more time thinking about which party has corruptly seated some of these equally corrupt jurists, and which party now holds the majority in the House and enough seats in the Senate to make conviction post-impeachment just as impossible.”

          Pithy analysis!

        • CovariantTensor says:

          “It wouldn’t even leave a committee were any representative to draft and submit a bill of impeachment.”
          Although, practical considerations like that didn’t stop “that little bitch” from beating MTG to the punch and submitting one against Biden.

        • Rayne says:

          Did Boebert’s bill leave a committee?? Don’t even bother to answer because it hasn’t.

          You’re on thin ice. It doesn’t look like you’re here to do anything but DDoS threads with bullshit chatter. Take a seat in the shade until you learn how to participate effectively here.

        • bmaz says:

          You are suddenly very present. You have a point there, but were you to wear a hat, you could cover it up.

      • Bears7485 says:

        I initially had prefaced my question with “I’d hate to stoop to the GQP’s level, but”

        I’m aware it would be a waste of time, just pile it on with the rest in the House. What other recourse is there then? Just bitch about it and get scolded by Scotus for having DARED to question their irreproachability? Nah, fuck that.

        • Norske23 says:

          Start with voting out Dick Durbin. He’s long outlived his usefulness and his chairmanship of Judiciary is useless.

          (Apologies if this is a different username, I’ve only attempted to comment once or twice before)

          [Moderator’s note: You commented for the first time a year ago February as “new here” which in hindsight wasn’t a very good username as it could be used by another “new here” user. Just stick with “Norske23” going forward and you’ll be okay. Thanks. /~Rayne]

        • Rayne says:

          Your first step is identifying and recruiting a Democratic candidate in Illinois willing to primary Durbin — a candidate who is more effective, has broad appeal across the party, and can fundraise adequately to fight the DSCC’s money.

          Until you do that, talking about voting Durbin out aids the IL-GOP.

        • Norske23 says:

          I agree, though I’d prefer he just not run again rather than suffering thru a primary. Seems the perennial lack of a bench in the Democratic Party will continue to haunt us for the foreseeable future.

        • Rayne says:

          You know what? You are part of the problem. When you talk about the Democratic Party as a separate entity, you’re leaving it to whomever shows up. And if nobody shows up, we end up with zero change.

          I wrote about this years ago, both in 2010 and 2016. Not a lick has changed except among younger folks who see progressive organizing groups like Indivisible as the path to change. But organizing outside the party doesn’t change the party.

        • Norske23 says:

          I have shown up, albeit not for a US Senate seat. I held a local office for 8 years and am active in my local area politics.

          Perhaps that’s not good enough, but it’s more than most people do. I agree that the party has to change from within, but I have shown up. My question is where the hell is everyone else?

        • David F. Snyder says:

          Democrats don’t seem (for now) as adept at messaging/marketing as the GOP. One of those messages is that “both sides do it.” When I go out to canvass nonvoting registered voters in Texas, that is the explanation I hear the most: “both parties are corrupt, my vote is meaningless”. Believe it or not, Texas would be a blue state if voter participation were up in in the 60-70th percentiles. As it is, you get yahoos like Abbott, Cruz, Paxton etc. being elected by 24-26% of registered voters.

      • datnotdat says:

        Not sure I agree with you. Your basic point that impeachment will not happen is totally correct. I don’t think that’s the same thing as ‘a monumental waste of time,’ however. I believe there is value in putting a marker down on this point. FDR’s plan to enlarge the Supreme Court bench failed, but that plan did seem to precede a sea change in the way the Justices considered the New Deal policies brought before them.

        • Rayne says:

          If impeachment fails, the corrupt jurists will see it as a Congressional permission slip to do worse.

          Don’t attempt impeachment unless you know you can take the impeached out. Did we not learn anything from Trump’s impeachments?

        • HorsewomaninPA says:

          This king saying is inappropriate in a democracy. Thousands lost their lives for us to not be afraid of royalty and shrink at the sound of the powerful. I’m with dat, we have every right to expect more of our justices – not because they have power over us, but because we give power to them. They have abused it and we should hold them accountable.

        • ToldainDarkwater says:

          The saying goes back to Machiavelli, though in quite a different form. I looked this up just today. The way Machiavelli put it is that when you attack someone powerful, it’s best to be sure they won’t be able to exact revenge. Maybe that works better for you?

          It was Ralph Waldo Emerson who put “kings” into the mix when he rephrased it.

          I find it a bit curious that you would think my quoting that endorses the idea of kings in America, though. Because I don’t, and it didn’t.

        • earlofhuntingdon says:

          The saying, or something like it, goes back to Machiavelli, if not farther. But it’s a rhetorical device. Using it is not a recommendation that the US become a monarchy.

        • Datnotdat says:

          As if our corrupt jurists are waiting for a permission slip from Congress to do worse…

          I’m glad you brought up Trump’s impeachments. Is America worse off because he was impeached (twice)? It’s incontrovertible that they did not lead to the freverently wished for outcome, but were they really ‘a monumental wastes of time?’

          Taking a step back, I see this as an argument about tactics. If you posit that right now, impeachment is not the most urgent use of our resources, I can subscribe to that. I guess my argument is that impeachment is not a valueless tool, and that it should remain in our toolbox, even if now is not the time to deploy it.

        • Rayne says:

          If the impeachments had successfully led to a conviction, Trump would neither have remained in office nor would he be eligible to run in 2024.

          We needed to nail the first impeachment but the Senate wasn’t going to deliver. DNC didn’t use the first impeachment as effectively as it should have to dig into Trump’s supporters so that it wasn’t absolutely obvious to MAGA voters that Trump didn’t win.

          Yes, it’s tactics. Don’t use a weapon if you’re not prepared to deal with the blowback.

        • bmaz says:

          Yes, indeed, it was a monumental waste of time. And they were performed as lamely as possibly imaginable. So too was the lame “J6 Committee”.

        • DoctorDoom says:

          I agree with you if one limits the scope of the question to whether there was a good chance of achieving a Senate conviction. But I believe that a broader question is more appropriate– could the impeachment process sway the political situation sufficiently to constrain Trump? The range of potential outcomes was relatively large, and as you state the impeachments were badly managed. Better management might have shifted the political tide strongly against Trump, possibly even enough to power a Watergate-like response from enough GOP senators to make a difference. Even as it was, I believe opinion shifted against Trump and his enablers as a result of the impeachments. Do you believe that impeachment was categorically an error, or could a more skillful effort gained your support?

        • Lisboeta says:

          “a Watergate-like response from enough GOP senators to make a difference”
          That, I would respectfully suggest, is an impossibility with the present (post 2016) make-up of the GOP.

        • Grain of Sand says:

          No, it wasn’t. The public (including, me) gained valuable access to information about Trump’s shenanigans, publicly reported and recorded in the Congressional Record. I also learned a lot about complicity on the part of congressional republicans.

        • timbozone says:

          Yes, if the Republic is to fall, let it not fall silently? It will be hard to drown out that there was an attempt to oust Trump from office while he was in office now. And that’s good… if not for us, then for historians and political scientists of later generations…so, I’d rather have a record of how the Congress and the progressive elements of our society tried but failed then to show that we did not try at all.

        • HorsewomaninPA says:

          You could also argue that silence signals agreement. Certainly, all these years of no communication about these ethics violations and no consequences haven’t influenced them to be more ethical. Not at least trying reminds me of what France did in WWII.

        • Rayne says:

          How much of that is a problem with media? Why did it take until now for so much of this to come to light — including funding for Thomas’s wedding?

          If there had been more and better coverage of SCOTUS jurists beginning with Scalia’s goddamned fishing trip, Dobbs might never have happened.

        • Bombay Troubadour says:

          I wonder about the funding for the Thomas wedding. Was there an invoice from Clarence to Harlan enterprises? Or was it a bag of cash? Bribery is so subjective these days.

        • earlofhuntingdon says:

          Because this Supreme Court has tried to legally define it out of existence. If it weren’t already clear why, it should be now.

        • Lisboeta says:

          US media is consolidated in the hands of 5 or 6 ultra-wealthy owners. The GOP serves their interests, so reportage is selective, if not outright biased. Investigative journalism is left to a few publicly-supported outlets, e.g. ProPublica. But their readership is limited.

        • earlofhuntingdon says:

          Given all the undone business in both houses, it would indeed be a monumental waste of time. Ask the Commandant of the Marine Corps. Oh, that’s right, there isn’t one. The House, for example, where any impeachment must originate, can’t even pass a standard fucking defense bill without holding it hostage to their culture wars.

        • Epicurus says:

          I understand your point about the futility of certain Congressional action, but the Marine Corps has an acting Commandant of the Marine Corps, General Eric M. Smith.

        • earlofhuntingdon says:

          Even if it’s the same person, it ain’t the same thing. But it’s worse with all the other flag officers’ promotions that Tuberville has put a hold on. Yet, Durbin and Schumer keep honoring outdated rules Republicans routinely dishonor, which seems cavalier, in an antebellum sense of the word.

        • bmaz says:

          SJC knows this. Heck, I talked with, and corresponded to Leahy, and his staff, back when he was chair of SJC about both blue slips and filibuster reform. Always got listened to, but never made a dent on this insanity.

        • ernesto1581 says:

          That is so interesting. Because an impressive contingent of VT state reps and senators, regular activist folks, ex-warplane designers, and ex-Air Force colonel hectored Leahy and staff for years about the idiotic idea of basing a dozen-and-half tactical nuclear-delivery fighters (F35) in the only cityscape in the state of Vermont.
          Nothing, nada. Like pissing into a windstorm. St Patrick had his many fine moments, for sure, but on this…

        • P J Evans says:

          It used to be that *all* officers (and US Postmasters, when that was a department) had to be confirmed by the Senate.
          Tuberville is unfit to serve in government at any level.

        • earlofhuntingdon says:

          They still are: congressional approval is what authorizes a commission. Below flag rank, they are usually approved en masse, as are many lower executive branch political appointees and some judges.

          Flag rank promotions are considered more individually, and are sometimes issued singly or in small groups. The destructive Tuberville has limited his culture war fury to flag rank commissions, but I don’t think that’s going to help him much when it comes to his next election. It’s hurting the military right now.

        • N.E. Brigand says:

          Quite so, but of course the reason the Marines, as of four days ago, are led by an acting Commandant (for the first time since 1910) is that the Senate has been unable to confirm his appointment (and hundreds of other military promotions).

        • Ravenclaw says:

          Yes. Acting. As in: not Senate-confirmed, known by all to be essentially a place-holder, hence unable to set or carry out a strategic agenda. All because of one GOP senator.

        • earlofhuntingdon says:

          Trump did a lot to abuse the role of acting appointees, reducing their effectiveness. Tuberville is riffing off that abuse, seeking to tarnish those the services choose to promote, all in service to his ego and his corrupt party’s culture war.

        • ExRacerX says:

          Donald J. Trump: “I like ‘acting’ because I can move so quickly.”

          And of course, once they were in place, Trump could also “fire” them whenever, for whatever—or just leave them hanging in the wind.

        • earlofhuntingdon says:

          He probably liked acting because he was so bad at politics – as opposed to electioneering and grifting. With a Senate in Democratic Party hands, and given many of his ludicrously unqualified nominees – I mean, Kash Patel for anything? – he hadn’t a chance of getting them approved.

          I suspect another element was that, given his immense but delicate ego, he could claim not to need that approval.

        • ExRacerX says:

          Good points. I’m sure he felt more in control, but it also made it more difficult for his administration to get stuff done.

        • bmaz says:

          I honestly do not care if you agree with me or not. You are painting Lucy In The Sky With Diamonds pictures.

      • paulka123 says:

        You’re right, nothing can be done. Fortunately, the damage that these corrupt justices can do for the next 30 + years is only marginally infinite.

    • HikaakiH says:

      The result is a foregone futile conclusion and both houses of Congress have other important things to be getting on with. Also note that if proceedings commenced against Alito and/or Thomas, you should expect proceedings against Sotomayor, too. I was curious about the reference to a SC justice whose staff had promoted their book sales and it didn’t take long using *any-old-search-engine* to find that this issue would get ‘bothsides-ed’ in a big way, regardless of what anyone here thinks of the relative demerits of the offending conduct.

    • confucious_way says:

      > Why haven’t we seen impeachment inquiries in the House?

      Two reasons: the first is that even if one considers the senate trial after impeachment to be a rigorous process having integrity, what justices clarence sale and alito did is not against the law. That’s the other scandal here.

      Now, I consider the senate trial to be somewhere between a kangaroo court and calvinball (they really do choose the rules of the trial anew every time). But even with a democrats-organized trial adopting reasonable rules based on federal rules of evidence and permitting witnesses (remember that?), there do not exist this term 16 GOP senators who will vote for conviction. No way do they vote to remove a GOP justice with a democrat in the white house and the GOP in the minority in the senate. The GOP’s continued outsize control of government(s) relative to their actual voter support very much depends on favorabe supreme court rulings, among other things.

    • wetzel-rhymes-with says:

      bmaz writes “This is FAR beyond “the appearance of impropriety”, it is actual impropriety.” What’s really great. It’s the plain truth. Nevertheless, it makes it very strange to hear Nina Totenburg or the NY Times sometimes forced to mention there are people out there arguing there is an appearance of impropriety.

      How often in American history has the Supreme Court had a few sycophantic, velvet gloved panderers to plutocrats? We are back to the Gilded Age, but this time some are also religious zealots. After Trump’s post-modern insanity, it’s refreshingly American, in a way. They are oblivious like a Macy’s day balloon and just as responsive to your grumbling, the conservative justices flying around and partying with fat cats. What’s the big deal? It’s like the S&L crisis or how we will always be losing to Reagan. You thought it was a shining city on the hill? Maybe America is like an El Dorado running over your face forever.

  7. TREPping says:

    Thanks for pointing out the op-ed. It is well done and succinctly points to reasons why ethical guidelines need to be written.

    • timbozone says:

      It points to why the current actual federal laws governing this sort of thing need to be followed and enforced. Is that even happening in the case of Thomas and Alito (et al)? Their attitude and public statements about their being on the take says it ain’t.

  8. rattlemullet says:

    Thanks for this writing it is greatly appreciated. The stench from this SC starts with McConnell and stays with him along with the support of the Republican Party, the Federalist Society as well as some democratic support. The course of correction will be difficult and only achieved through the ballot box, which will take many voting cycles. If at all achievable at all.

  9. ChipOffTheOldBlock says:

    This is the legal equivalent of the difference between the top and bottom of the pyramid in any large bureaucracy/organization. I’ve seen government contract monitors turn down a 50 cent can of soda from a company fridge. This is just everyday, non-partisan “I’m too important to be bothered with/bound by such things.”

    It’d be nice if we lived in a society where there was some accountability for this sort of thing. It would also be nice if my burps smelled like roses. I’m not holding my breath waiting for either to happen…

  10. PeteT0323 says:

    Cookies all eaten and I still can’t get behind the NYT paywall.

    “A justice’s taxpayer-financed staff reportedly helping to promote her books?”

    Let me guess: Justice Amy Coney Barrett.

      • 0Alexander Platt0 says:

        And it would be an entirely respectable choice for her to resign, too. It would set a good example, she’s served well over a decade, is pushing 70, and has a democratic president with a democratic senate. I really don’t see a downside.

        • earlofhuntingdon says:

          An Al Franken moment. LOL. Seems a tad exaggerated to suggest it, not to mention Schumer and the atrocious Durbin don’t seem up to the task of replacing her with someone better.

        • 0Alexander Platt0 says:

          Biden has done a perfectly good job of nominating SCOTUS justices and Schumer and Durbin have done a perfectly good job of seating them.

          Yeah, Sotomayor doesn’t have to fall on her sword. But given that it’s an expedient time for aging, long-serving members of the bench to retire gracefully, it would be perfectly reasonable for her to do so.

        • earlofhuntingdon says:

          Lower court appointments are not remotely in the same league as Supreme Court appointments.

          I disagree with your evaluation of Durbin’s success as Judiciary Committee chair. I disagree more strongly with your notion that now is “an expedient time” legally or politically to replace Justice Sotomayor, who could faithfully serve for another decade and a half.

          I’m not advocating for Durbin’s replacement as a Senator from Illinois, even though he meets your criteria as “an aging, long-serving” member of the Senate and is ten years older than Sotomayor. I am advocating for someone to replace him in that role, perhaps Whitehouse, who is eleven years younger than Durbin.

        • ButteredToast says:

          Durbin has stubbornly insisted on maintaining the so-called blue-slip custom, which has hindered Biden’s selection of nominees of his choice (and subsequent confirmation of them) in states that have a Republican senator. This in spite of the fact that when Grassley and Graham chaired the Judiciary Committee, they simply ignored blue slips.

        • bmaz says:

          Ya think? Don’ forget Feinstein in there too. The level of Dem stupidity is simply amazing.

        • ButteredToast says:

          Agreed. And I’d thought Durbin would be a big improvement over Feinstein. More fool me.

        • P’villain says:

          I’m certainly not advocating that she step down, but I worry about her – diabetes shortens lives, no matter how good your medical care

        • ExRacerX says:

          Statistically, males have shorter lifespans, so we should also be “worried” about all the male justices. ;P

        • David F. Snyder says:

          My step-mom fell into a diabetic coma 45 years ago at the age of 41 and she is still in good shape. But, unlike many diabetics, she takes excellent care of herself with her insulin pump, regular visits to her endocrinologist, etc. So while statistically diabetes shortens lives, I don’t buy that this shortening is not preventable. Sorto is intelligent like my step-mom and I bet she’s also taking such care with her condition — she’ll know when to step down when and if the time comes.

        • CovariantTensor says:

          “I really don’t see a downside.”

          How about another circus of a confirmation hearing, just for starters? Probably held hostage by some member for whatever political strategy.

          The days when a POTUS got to pick a qualified but ideologically aligned justice with bipartisan consent are way behind us.

        • Rayne says:

          You say this, “The days when a POTUS got to pick a qualified but ideologically aligned justice with bipartisan consent are way behind us” but you can’t understand why an impeachment of a GOP-nominated SCOTUS jurist won’t succeed in removing that jurist.

          Now I know you’re just DDoSing.

        • David F. Snyder says:

          It seems the handle “Mixed Tensor” would be more appropriate, given the contravariance exhibited.

        • CovariantTensor says:

          Not meaning to be so contrary as I appear, but good one. I’ll try to be more clear.

        • paulka123 says:

          PUHLEEAASEEE we have an election in like 15 months, we can’t be thinking about seating Supreme Court justices! And if Biden is reelected, well he is a lame duck president, so he can’t appoint then either. Better to wait until 2028.

      • LargeMoose says:

        Also, ad-blockers such as browser plugins like uBlock Origin, and uMatrix can disable some paywalls. uBlock also allows you to remove annoying page elements, and stops YouTube ads.

        • Tech Support says:

          NYT has a shockingly easy way to circumvent it’s paywall. It does have the unfortunate effect of breaking the more dynamic parts of their web pages. Annotated maps and images will not display and it prevents you from expanding the “Read More” sections of their “live update” pieces.

          Since other paywalled sites like WaPo and WSJ are much more thorough in their approach, I’ve concluded that NYT’s porous security is a form of crypto-marketing akin to Netflix’s (formerly) long practice of turning a blind eye towards password sharing.

        • LargeMoose says:

          WaPo is susceptible to JavaScript fiddling via plugins. I am a subscriber, and still have to disable scripts to read the articles :-(. I think WSJ does everything on the server side, and there’s no way to surmount that. I wouldn’t give Rupert a penny, so I use on them (don’t know how safe that is tho’, so careful…).

        • earlofhuntingdon says:

          I found it amusing that the NYT once did a puffed up series on cybersecurity, but made you turn off your own security measures to read it. How droll and greedy of them.

    • N.E. Brigand says:

      I don’t have a problem with Justice Sotomayor’s book being sold at events where she was speaking and signing, but while nowhere near as outrageous as the reported conduct of Justices Alito and Thomas, I do find it troubling that Sotomayor took part in events that, at the urging of Sotomayor’s staff, required individuals to own a copy of her book in order to meet her, which seems to be effectively what happened here — unless there was a separate reception line for guests who had not at some point acquired her book?

      I don’t think the statement from the Court that “a judge may sign copies of his or her work, which may also be available for sale” if “no requirement or suggestion that attendees are required to purchase books in order to attend” addresses my concern, especially given that it also says that “Asking whether attendees were reminded that they must either buy or bring a book in order to enter a signing line at an event would in no way conflict with the standard outlined above.”

    • Suburban Bumpkin says:

      You can try accessing the NYT through your local library. At least one of the libraries I have a card for, I can go to their website and with a few clicks get the NYT and WaPo. It’s very handy when a gifted link isn’t available. The temp access is for several days to a week.

  11. drhester says:

    Thanks for the clarity. I read not long ago that Justice Kagan refused lox, bagels and a babka, just for the same reason.

  12. Spencer Dawkins says:

    Bmaz, thank you for sharing your perspective on this. Some of us non-lawyers have a decent idea of what the (non-SCOTUS) ethical rules are – they aren’t THAT different than employee code of ethics statements I’ve signed for multiple employers in the past – but specific examples of what it looks like when someone follows the rules are helpful, too.

    And I have to say that if I ever start another garage band, “Graft and Grift” is in first place as a potential name … and it’s also a great name for a political comedy duo.

    (As an aside, I listened to/read a LOT of good-natured political humor, probably starting with my parents’ Vaughn Meader “The First Family” album (released in 1962. so I would have been about 8). It’s been a long time since mainstream comedians could poke fun at political figures in a non-partisan way, and I miss it)

    • rosalind says:

      (we had that album!! i discovered it when i was a wee one, listened to it over and over)

      • P J Evans says:

        We didn’t have that one, but I remember buying the “Watergate Comedy Album”, which is also pretty good.

        • CovariantTensor says:

          Watergate comedy isn’t exactly nonpartisan, though. But I remember, long ago, having an album called ‘The Secret White House Tapes” by National Lampoon which featured, among other things, a parody of “Sesame Street” where “Big Dick” counts the tapes, then feeds two of them to “Shredder Monster”, then “Irvin the Frog” comes looking for them. I wish I could find it now, but I must have lent it o someone.

          It’s true, though, that comedians used to poke fun at both sides, and nobody was keeping score. Mark Russell was a good example. Stephen Colbert did his Biden impression, and probably will again if the strikes are ever settled, but it’s pretty clear which side of the aisle he is on.

    • Alan Charbonneau says:

      I also was 8 in 1962 and I remember the “First Family” album. They had a parody of RFK’s family hiking 50 miles:
      “Five, ten, fifty mile hike!
      Oh my feet are killing me!”
      “Five, ten, fifty mile hike!
      Taxi, taxi, taxi please!”

  13. Epicurus says:

    The Constitution has a number of flaws. An obvious flaw in the Judicial Branch is the lack of a controlling concept or definition of justice. Justice is noted in the Preamble – to establish justice – as a reason for We the People to establish our Constitution. It is also in the Supreme Court Judicial Oath of Office – to administer justice without regard to persons. But if there is no Constitutional definition, people create their own definition and one that becomes a variation on/default to Potter Stewart’s definition of pornography – I’ll know it when I see it. As a result we have justices on the Supreme Court with, I would argue, mutually exclusive definitions of justice. How is that possible? The justice concepts of Thomas and Jackson seem light years apart and irreconciliable as one example.

    It would be impossible, my belief, to get a Constitutional definition of justice now as there is too much power resident in the current individual justice situation to ever want to give that up by those selecting the judges. Even if terms are shortened, this essential problem would remain. Ethics to me are a form of justice process, so we are left here with what is in front of us: a court whose members each want her/his own definition of justice to prevail across the general population, to pretend that the prevailing itself is legitimacy, and to be the “rule of law”. Alongside that situation is a corresponding self-definition of what is ethical.

    I would say Jamal Greene’s book “How Rights Went Wrong: Our Obsession With Rights Is Tearing Us Apart” has an answer that relates to justice in its suggestions. I think it also a wise book in terms of the Court’s governing function under the Constitution and as described by by Abram Chayes in the following, starting on page 25.

    • Rayne says:

      First, a definition of justice drafted by white land-owning men 234-247 years ago might look as bad as “all men are created equal” does today.

      Second, citing work promoted by American Enterprise Institute? Really? You realize they’re in the tank for persons and entities who don’t want every person in this country to have equal human rights and they’d pay to ensure a book to make that case would be published, don’t you?

      Apparently not, what the fuck am I saying. It’s Epicurus who has proven time and again a crypto GOPr, of course, of course.

      • Epicurus says:

        I am advocating the suggestions in Jamal Greene’s book as a way forward, a wise way forward, toward “justice”. The GOP is genetically incapable of considering Mr. Greene’s suggestions, so it is laughable that you would consider me a crypto GOPer.

        The article I cited spoke about the role the judiciary has created/assumed in four ways in governing the country as a third branch of our government and, as the article discusses, as a way toward establishing justice per the Preamble. The judiciary is infrequently described from that perspective. I used the article hoping people would read it, think of the governing role the judiciary has in establishing justice, and how the current court evades that responsibility/obligation.

        • Rayne says:

          “it is laughable that you would consider me a crypto GOPer”

          No, my personal assessment is based on the body of your 364 published comments here to date. You’re very consistent, I’ll give you that.

          The GOP is genetically incapable of considering Mr. Greene’s suggestions

          Then why offer that text at all considering the source is promulgated by a right-wing corporatist organization? The left owes them nothing when their offerings have consistently failed to ensure we can “form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”

          The American right-wing will never agree on a definition of justice which fundamentally relies on the concept of every human being equal. Nor will the corporatist faction agree that corporations as a legal construct do not have rights possessed by humans. Asking the left to consider the denial of equal rights to all humans an equally legitimate position is merely shoving the Overton window yet more to the right, while legitimizing the threats to life and liberty of those most marginalized in this society.

          This current court is simply a right-wing mouthpiece which doesn’t give a shit about justice except that which buys its vacations and pays for family members’ tuition. It’s really that simple — the body of its work is evidence.

        • earlofhuntingdon says:

          Harlan Crow, an AEI board member, is representative of the kind of bought-and-paid-for-by-the-wealthy judiciary the AEI really wants.

        • Rayne says:

          That, combined with the Kochs, dead and alive.

          I think we have a pretty fucking good idea already what Crow and Kochs’ takes are on justice.

    • earlofhuntingdon says:

      The “lack of a controlling concept or definition of justice,” is not what’s holding back the AEI or the current majority on the Supreme Court. It’s that they seek arbitrarily to impose their idiosyncratic and punishing definition of justice on a citizenry that largely disagrees with them. As zealots with massive egos, willing to become martyrs for their cause, they take the logic and emotion of those who disagree with them as proof of their own right course.

      • BirdGardener says:

        I’m not following—in what way are the majority-justices of the SCOTUS becoming martyrs for their cause?

        • earlofhuntingdon says:

          Perhaps because I wrote they were such zealots, they were “willing to become martyrs for their cause,” not that events had forced them to become martyrs.

        • BirdGardener says:

          I respectfully disagree that any of the conservative justices on the SC are willing to become martyrs. But then…I grew up in a neighborhood of civil rights activists who risked their freedom and their lives trying to build a more just society; Norman Morrison (,involvement%20in%20the%20Vietnam%20War. ) was a member of our Meeting…so ‘martyr’ has perhaps a more literal meaning to me than you’re intending.

          If you mean it the way Mrs. Bennet did in Pride and Prejudice (‘I’m a martyr to my nerves,’ wasn’t it?), I can see it. Otherwise no. What are they risking? Nothing compared to the people I knew.

          Rayne, I put a space after the ? in the link to the wiki article, because I remember you saying something about tracking data coming after the question mark.

          [FYI — link replaced with Wikipedia page URL. You need to copy the link once you’ve landed on the right page in Wikipedia and not the link shown in your Google Search otherwise Google will be able to see not only your search but details about everyone else who uses that link. Thanks. /~Rayne]

        • Rayne says:

          LOL I like your recollection of Mrs. Bennet’s nerves but I’m sorry — Austen only used the word “martyr” in one of her early works published as Love and Freindship [sic]. You may be thinking of this exchange:

          “Mr. Bennet, how can you abuse your own children in such a way? You take delight in vexing me. You have no compassion on my poor nerves.”

          “You mistake me, my dear. I have a high respect for your nerves. They are my old friends. I have heard you mention them with consideration these twenty years at least.”

          “Ah, you do not know what I suffer.”

          “But I hope you will get over it, and live to see many young men of four thousand a year come into the neighbourhood.”

          “It will be no use to us, if twenty such should come, since you will not visit them.”

          “Depend upon it, my dear, that when there are twenty, I will visit them all.”

          Which of course leads one to wonder which of the pair, Mrs. or Mr., is the martyr to Mrs. Bennet’s nerves.

          Pride and Prejudice and multi-decade nervous fits aside, you’re right that none of the conservative justices are willing to be martyrs. They’re too ready to whine about the inconvenience of protesters exercising their free speech right to protest outside their residences, no matter than these justices have stripped more than half the American public of their equal protections under the law and reduced them to a second, lesser class.

    • Greg Hunter says:

      Thanks for that document as it really helped clarify that the Founders chose to give the Philosophers of the Law a co-equal branch of governance. I will admit I read this AEI document like I have been taught to read the NYT, but I have been looking for someone to describe the 9th Amendment to me and bang Chapter 1.
      I actually skipped Chapter 2 until I read your post again. I was looking for a 9th Amendment angle. I felt by skimming the rest of it it was rightly an AEI primer on their Judicial Philosophy that restricts the Judicial Branch from defining new Rights for the US citizen, which I disagree with.

      The rest of the AEI document confirmed my suspicions, but they cannot hide that the Judicial Branch wields great power over the citizens and can offer remedies for wrongs committed by the other two branches of government.

      It is clear to me that the Founders decided to let the Judicial Philosophers define rights and the Right to Privacy articulated in Roe but destroyed by Dobbs has been a far larger assault on the Constitution than the J6 insurrectionists.

        • Epicurus says:

          I don’t read AEI articles. I really don’t know what it is. Chapter 2, the Chayes article, came up separately in a search for justice and the Supreme Court. I didn’t know a way to just cite Chapter Two, the article I referenced, by itself so I referenced the entire AEI article. I scanned Chapter One, 9th Amendment stuff, briefly but it wasn’t germane to what I was looking for. I am glad it gave you the understanding you were looking for but the 9th Amendment wasn’t my intention. I didn’t read the rest of the articles.

          There were no 9th Amendment intentions in my post, just the problems inherent in not having a critical societal goal – justice – in a constitutional document defined. I am grateful you read the chapter I referenced and could reinforce your understanding the judiciary’s governing role.

          Thanks again.

        • earlofhuntingdon says:

          “I really don’t know what… [the American Enterprise Institute] is.” An incredible statement for even a casual reader of this site.

          It’s a principal think tank and purveyor of wingnut welfare for big business and the American right, although it styles itself implausibly as “center right.”

          It’s massaged Wikipedia entry lists its board members, which should give you a sense of its priorities. They include Dick Cheney, Harlan Crow, Peter Coors, Dick DeVos, and a passel of CEOs and hedge fund managers.

        • Greg Hunter says:

          I am about half done with the book, and now I know why the AEI article started out bashing Goldberg. This book goes a long way in helping me understand the history and philosophy of the Justices.

          I can see why the current court wants to claim originalism as it will aid them in making their dream of a religious based America.

          Most Americans can see the inherent right to privacy in the Constitution but I can see why those with a limited world view would cling to a narrow view of Justice but seemingly an expansive view of receiving “gifts”. Hypocrisy every time.

    • David F. Snyder says:

      Perhaps, but being overly precise has even more issues, as Madison et al. well knew. But the more important issue is the Judicial Act of 1925, which Taft drafted and thereby granted too much power to the SC in deciding its docket and providing other openings for procedural knife-in-back attacks on Justice. This Act, as currently on the books, is what gives the current SCotUS its teeth. The good news is that Congress can change the situation — and it behooves all parties to do so.

  14. earlofhuntingdon says:

    Seems an appropriate time to wish happy Juillet Quatorze to those who celebrate.

    • ExRacerX says:

      As always, Bastille Day comes during the Tour de France, and, as always, the French fans are even more animated than usual. As to me, I listened to the old Rush song. Canadians, paying respect to their country’s indirect history, I always imagined…

      “…And they’re marching to Bastille Day
      La guillotine will claim her bloody prize
      Sing, o choirs of cacophony
      The king must kneel to let his kingdom rise…”

  15. Dmbeaster says:

    Some of these judges whine that they do not get the proper measure of respect, and then they do this. They have corrupt souls.

  16. Rapier says:

    Giving something of value is the same as giving money. Since the Supreme Court had declared that money is speech any restriction on giving gifts would be a restriction of free speech. Why does Judge Posner hate freedom?

    • HikaakiH says:

      I sure wish I was more eloquent in that way, just as Tevye in Fiddler on the Roof wished for God to smite him.

  17. Ebenezer Scrooge says:

    Ethical standards have changed with time: generally for the better. Back before the Serpico days, my father had a liquor store in a rough neighborhood. Cops were welcome to come in and have all the free soft drinks and Slim Jims they wanted. But he had enough sense not to offer free booze, and the cops had enough sense not to ask. Nowadays, most big city cops know they have to pay for everything.

  18. Bobby Gladd says:

    During my last semester in undergraduate school in 1985 (UTK), I had an awesome seminar in “psychology of law.” It was taught by the head of the psychology department, who, in the course of conducting research into the pyschology of eyewitness testimony, went on to get a law degree.

    Among the things we had to do was to go to the Knox county courthouse, and observe trials and interview judges. I vividly recall one judge telling me that judge life was a fairly “lonely social existence.” Given that most of judges’ natural intellectual friends would be lawyers, they were constrained from socializing to avoid appearances of impropriety.

    The good old days… 🤣

  19. Jharp jharp says:

    I know 1st hand from my past business life that Wal Mart buyers were and are prohibited from accepting even a bottled water.

    K Mart buyers? Golf trips and gift certificates to upscale shopping meccas were just fine.

    Seems like one of those companies chose a superior business model.

    • HikaakiH says:

      Curious that Walmart understood how ethics applied to their buyers spending their money, but didn’t care so much about the ethics of having their full-time employees being paid so poorly that they needed to rely on public assistance programs to keep housed and fed.

  20. Chetnolian says:

    Bmaz, your devotion to the US legal system, its forms and processes, has always been impressive.

    As a lawyer from the old imperial power with an intense love/hate relationship to the USA I have always worried about the direct application of democracy to the judiciary in he USA, believing it had the potential for an inbuilt lack of ethical judiciousness. There are many things wrong with my homeland but one of its strengths is the existence of a judiciary which is deeply committed to high ethical standards, and, as we saw during the sad progression of Brexit, was fearless in calling out partisan political meddling with these standards.

    The USA has it seems to an outsider, now reached the point where my concerns stop being theoretical. If the system cannot control this ethical slide the consequences will be horrendous.

    • bmaz says:

      Lol, you know, it goes where it goes. I am dubious about attempts to “fix it”, because it can very easily be made worse.

    • earlofhuntingdon says:

      My love/hate relationship questions are similar. I’ve always wondered how a judiciary, so relentlessly filtered for its adherence to establishment norms, could be fair to those who live inadvertently or passionately outside those norms.

    • timbozone says:

      It already is horrendous in a modern sense. When the state dictates that a woman must bring an unwanted pregnancy to term, it causes a lot of needless and preventable suffering…while simultaneously disempowering women in the workforce and political life. It is an attack on women as equal citizens in society. It is a misogynists, theocratic, plutocratic paradise that they are recreating by “originalist”/”historical precedent” rationalized nonsensical legal fiat. Their goal is full patriarchy, with a subservient mommy and retiring and desperate children as a labor force.

  21. confucious_way says:

    > Private school tuition for a justice’s family member covered by a wealthy benefactor? Wow.

    I’ll note that in this laundry list of dubious choices of justices, one huge one was omitted: permitting a justice’s mother to live for years rent-free in property owned by an individual having business before the court. That one even has a coercive component to it–“you wouldn’t want dear old mom to have to move, would you?”

    I wonder if it was edited out.

  22. paulka123 says:

    BMAZ: “Do I think that makes them “corrupt” per se? I do not know that, we shall see how it all plays out further.”

    Let me answer your question. Yes, it is corrupt. And IANAL, but I live under the auspices of professional conduct requirements. But, I was raised correctly. And this is corruption.

    But, you see, as IANAL, I can see that this whole affair is one of those situations that does not need to be written down. A SC Justice should not be taking the types of things that Thomas (esp.), but also Alito have been accepting. Period Full Stop.

    They view themselves as Kings-unaccountable to anyone, lifetime appointments. Trust me Thomas, at least, is LAUGHING at the peons who cluck about corruption. Alito, at least, has the self-awareness to be pissed when called on his corruption. The “How DARE you question me!” at least acknowledges a relationship between the unwashed masses and the Judge Emperor. But Thomas? He doesn’t care one iota. He is only perturbed to have to trouble himself to now admit to some of the gifts he has been given.

    I guarantee you; Thomas views himself as judicial royalty (with the emphasis on royalty-a perverted royalty, but royalty nonetheless).

    • earlofhuntingdon says:

      Even as a rhetorical device, I suggest you stick to answering your own questions.

  23. TimothyB says:

    Extremely useful discussion. Thank you for your wisdom and for setting off this discussion, bmaz.

    Thanks to whole emptywheel team for keeping this site one where most posts add something to the discussion. Even on a very difficult topic like this, largely useful discussion. I particularly appreciate your hard work moderating discussions, Rayne and bmaz (and others? )

    • -mamake- says:

      I second those appreciations. Most reliable place to read and a great array of interesting voices.
      Thanks, Rayne, bmaz, Marcy, Peterr and all the regulars. Don’t know where I’d be had I not stumbled across Marcy a few years ago, and then discovering the rest of the team. Wow…

      • punaise says:

        Internet privacy rules are different here in Europe and every time you access a website you have to choose the cookie option. I’m sticking with chocolate chip for now.

        • LizzyMom says:

          The default setting for the cookies is “accept all”, equivalent of chocolate chips, pecans, walnuts, raisins and frosting. You are also offered “reject all” which is “no cookies for me, thanks”. But then there is the option that lets you select which of the ingredients you will allow, so you can reject the raisins, while going along with all others. 😆

        • P J Evans says:

          I’ll take the ones with raisins. Or cranberries. (Local supermarket does oatmeal-raisin and oatmeal-cranberry; both are excellent, though large. Local W-Mart also has a bakery, and the “decadent oatmeal raisin” cookies are likewise excellent.)

  24. Mike Stone says:

    Unless I am wrong, would not the accepting of these gifts not just be an unethical action, but also against the law. Are not Federal employees prohibited from accepting gifts above a certain value?

    If accepting large gifts is illegal, then would it not be possible to prosecute judges who have accepted these gifts (assuming it can be proven in court)?

  25. bawiggans says:

    There is a mental gymnastic being performed by those who are fine with Thomas and Alito accepting the substantial, even extravagant largesse of individuals and organizations supportive of the results of their peculiar jurisprudence. Since Thomas and Alito have made no secret of their predilections and prejudices, gifts from the like-minded create no appearance (or smell) of a quid pro quo because the justices and the gift givers are already on the same side. No influence was exerted by the givers because none was needed.

    This requires ignoring the long-term effects of the nutrient bath for conservative justices maintained by these gift givers to keep them comfortable and positively reinforced in staying the course.

  26. BrokenPromises says:

    “Hypertechnical arguments about how a free private airplane flight is a kind of facility?”

    Sort of how I have read articles of SC rulings for decades in a number of cases I could see where judges used faulty logic to support what was certainly personal partisan world views on a subject, something about Marijuana comes to mind.

    Judges in my view are trained and trained intently in an ecosystem if you will that is insular and connected to the power functioning of the economic sociopolitical regimented culture in which they live. They do not have world experience or perhaps more accurately personal experience of the place of mankind in nature. They exist and function in a world of abstraction (note on one level abstraction is not evil and indeed essential) that is outside of the norm of most citizens and definitely outside of mans place in the universe. Also like all people they come with their environment of origin and all it’s attendant expectations, biases, prejudices and flaws. Now when they are selected to the bench based on that external environment ie., the Federalist Society we arrive at the hyper-distortion that is the current Supreme Court.

    Thanks to Bmaz excellent description of ethical judges we can see that like all of life these flawed personalities in positions of authority are not the majority there are a majority who are decent excellent thinkers and people.

    As an aside this diary pretty much resonates with my username. Broken promises indeed.

  27. CovariantTensor says:

    I’ve always though of Thomas as the most compromised of the lot, long before the issue of undisclosed gifts became public. My reason is simply the monotonous regularity of his rulings in lock step with the GOP and Federalist Society agendas. Most justices offer at least a few surprises. I believe that for a long time he didn’t even participate in arguments, just cast his predictable vote. One of the more egregious may have been as the sole yea vote for “executive privilege” as an argument for not disclosing Trump’s presidential records to the J6 Committee (whatever people may think of the J6C, which I know is not popular here). By the way, it also would have served to shield Gini’s involvement with the “Stop the Steal” moment.

    I used to believe, silly me, that he was merely a hard right ideologue willing to warp his interpretations of the laws and the Constitution to conform to his political views, which would be a big enough problem. But the revelation of the largess he has been receiving (whether or not from parties with immediate business before the Court) makes it look even worse. It’s pretty hard to make an intellectually honest appraisal that the gifts had absolutely nothing to do with the way he rules.

  28. Retired Lawyer says:

    I’m an anthropologist who went to law school and wrote a paper about judges across cultures. Upshot? They pretty much all decide first and then use the “law” to justify their decisions.

    As a grateful reader and first-time commenter I’d also like to commend the commentariat here for by and large refraining from ad hominem attacks on each other. Can’t we all just get along?

    • bmaz says:

      Any person, whether judge, juror, or whatever, comes with pre-conceived notions. That is okay and fine.

    • timbozone says:

      The differences between the US legal system and Napoleonic et all legal systems aside, a stable legal framework cannot exist without a priori expectation…

      In a modern legal based society, a judge must stand within the frameworks of the written law, and adhere to such standards to be considered an upholder of the written law. Within a given written legal framework, one can argue that there are bad laws and good judges or good laws and bad judges. Without a written framework adhered to, there are generally no laws and poor judges, a growth in tyrannies, petty or egregious.

      Written law, well adjudicated, and sticking to a society wide acknowledged framework (some of which may be unwritten but assumed), leads to more predictability in the outcome of undertakings within that society. If the laws and the structure of the legal system is really sound, is respectful of individuals, acknowledges an encompassing interest in the general well-being, etc, the wealth of the population (in an ever broadening sense) will rise under fair adjudication due to this predictability.

      I write all this in response to the notion “that they [judges] all decide first and then use the ‘law’ to justify their decisions”. Is that an ideal or norm that we should expect of those who sit in judgement upon us? I sure hope the answer to that question is “No”.

  29. Elvishasleftthebuilding says:

    1. I have friends who have ruined their careers in state government for doing much less than Justice Thomas.
    2 I have spent a ton of time drafting an ethics policy for quasi-public state agencies in an effort to bring common sense into an area where draconian logic {“not even a donut at a meeting is acceptable”) reigns. Came up with a requirement that anything from a vendor that exceeded $35 was reportable. Don’t know if this was right, but it struck me as right at the time.
    3. It’s my understanding (see that the Ethics in Government Act of 1978 contains financial disclosure laws that apply to the Supreme Court. 5 USC 13106 contains penalties for inaccurate filing, authorizing the Attorney General to bring a civil action in cases of non-compliance involving failure to report (I don’t think criminal penalties seem to apply here).. It authorizes Congressional committees to make referrals to the Attorney General. While impeachment is certainly one remedy (that won’t happen), isn’t it possible that a Congressional Ethics committee or the Attorney General himself could open a civil case? While it would arguably be a “slap on the wrist,” such a slap seems appropriate and would sully the reputation of anyone subject to such a penalty. Or do I have this all wrong?

    • bmaz says:

      Naw, not wrong. It is interesting you pegged a dollar threshold. $35 is fairly big. Think I would have gone with $20, but don’t know why I say that. In the story in the post, both the cookie box and drink would be under $20, but to their credit the judges would not go there. All of them are gone from the bench, or senior status, but it is simply amazing what is permissible at SCOTUS now. Mind boggling.

      • Elvishasleftthebuilding says:

        I have mostly been a private sector person. $35 was intended to allow a not extravagant meal. I think we had an annual cap from one firm or maybe person of $75 But we were very far from being an agency where we had to be as pure as Caesar’s wife … applicable state law gave us a lot more f discretion… we were scared of a Joe Paterno type of scandal… and wanted to make sure that folks in the agency could do their jobs… which entailed sales and interacting with the public.

  30. Shell4747 says:

    Meanwhile, in the world of elected judges, pretty much every attorney is not just solicited to contribute to sitting judges’ re-election campaigns, but expected to do so. I find that hard to square with the “no Christmas cookies” and “no drinks at the bar” regime, but I suppose it’s harder to give cookies & drinks to a campaign.

    • bmaz says:

      Here, in the world where judges are appointed (from a mostly fair commission), not elected, and the only ones “elected” are justices of the peace, I have never contributed to their campaigns, and not sure I know anybody that has.

      • Shell4747 says:

        As an aspiration for the 38 states that elect judges or have retention elections, that sounds amazing.I’m sure that 100% appointed judges (they do need to be re-appointed, usually, at some point) also have their downsides at some level, but routine money-grubbing for re-election at least isn’t one of them.

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