BAD BEHAVIOR

No, today's comments are not about the debate. I need a sanity break from last night’s catastrophic demonstration of how we have managed to limit ourselves to two bad choices for president. 

Today I want to comment about another serious challenge to our democracy, our judiciary.

I have written before about judicial disgrace. At a time when our democracy is imperiled by division, it is more-than-ever important that the third branch of our government do everything in its power to obey the rules and preserve our democracy through the even-handed dispensation of justice. Though the public’s respect for our Supreme Court is at the lowest in history, the country nevertheless continues to obey its rulings. But for how much longer? The ethical corruption of the Supreme Court brings us closer to the point where good people will simply refuse to obey the courts. When that happens, we have lost our Constitutional democracy. 

I remain an advocate of enlarging the Supreme Court to overcome what I see as illegal, unconstitutional, and unethical behavior by some of its members.

Let's take the most obvious, the most glaring, the most offensive instances of bad behavior on the part of some Justices.

In 1969, Justice Abe Fortas resigned from the Supreme Court when it was revealed he had accepted $15,000 in gifts from former colleagues. So far, in 2024, Justice Clarence Thomas has accepted nearly $4.2 million in gifts and not only has refused to resign, he has refused to recuse himself from sitting on January 6 cases in which his wife has publicly pronounced a keen pro-insurrectionist view. Next in the gift hierarchy is Justice Samuel Alito who has received $170,000 in gifts and also has refused to recuse himself in January 6 cases where he and his wife have publicly displayed their unshielded political one-sided interest. (Just yesterday, Alito and Thomas voted to strike down convictions of some of the January 6 insurrectionists.) Whether that decision is "correct" or not, neither Thomas nor Alito should have participated in it. They should have recused themselves in any January 6 case because there is no doubt that their participation had the appearance of bias.

What to do about this? My preference for enlarging the court has its critics: first, it requires Democratic control of the presidency and both houses of Congress. Second, there are those who fear it will result in a tit-for-tat future i.e. if and when the opposing party takes control, then, they will enlarge the court again and do what Mitch McConnell did, torture the rules to be sure of a conservative majority. Third, there is the history of FDR's effort to "pack the court" which failed despite substantial Democratic control over the legislature,

But I suggest, there is a direct and simpler way of dealing with Messrs.Thomas and Alito, though it too requires Democratic control of the Article I and Article II branches of government.

Conservatives have emphasized the notion of “textualism", i.e. strict observance of the meaning of the words of the Constitution, in the process of applying the law. Therein lies the answer.

The Constitution provides two different standards for the removal of government officials. Article II, Section 4 states that the president, vice president, and other civil offices of the United States shall be removed upon impeachment and conviction for "treason, bribery, or other high crimes and misdemeanors.

Article III, on the other hand, provides a drastically different standard for the removal of judges. Article III, Section 1 provides that the judges “shall hold their Offices during good Behaviour.” In other words, lack of “good Behaviour” is grounds for removal. History has demonstrated the propriety of removing judges via impeachment for offenses far less serious than "treason, bribery, or other high crimes and misdemeanors.”—the most singular examples being intoxication on the bench, and impartiality.

Thomas and Alito should be impeached and removed from the bench in accordance with the clear textual command of the Constitution. While the Supremes have refused to adopt an enforceable ethical code, there is no need to do so. The Constitution has already supplied one.

Want to preserve the Constitution? Want to preserve freedom of reproductive choice, contraception, same-sex marriage, freedom to marry persons of a different race? 

Like it or not, debate or no debate, it's November 5 or else.

 

A bientot.

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