From awe to dismay at the Scotus

Since I was a law student, to my law practice, to my incumbency in our Supreme Court, I have been in absolute awe of the Supreme Court of the United States (Scotus). I regarded its nine justices with admiration and reverence befitting deities in the legendary Mount Olympus. Unreachable, unfathomable, and infallible they were. I often quoted the lofty Oliver Wendell Holmes Jr., Benjamin Cardozo, and Felix Frankfurter. I admired the guts and constitutional wisdom of Hugo Black, William Brennan, and Thurgood Marshall.

WHENEVER I WENT TO THE SCOTUS OFFICE IN WASHINGTON, to visit now retired Sandra Day O’Connor and Anthony Kennedy, and (to a limited degree, the deceased) Antonin Scalia, I always passed by the huge bronze statue of the great chief justice John Marshall, to pay homage, as it were, to an American deity.

Lately, however, my awe turned to dismay, and my admiration soured to desolation because of what I believe are unethical, if not illegal, practices of the current Scotus members, such as receipt of enormous sums as royalties, speaking fees, gifts from friends, paid vacations with private yachts and private planes in exclusive hotels, hobnobbing with the rich and famous in private clubs, and lately, partisan political bias.

Specifically, responding to criticisms on the opaqueness of their financial dealings, the justices recently disclosed their “royalties” for last year alone (aside from their 2023 salary of $285,400 for justices and $298,500 for the chief justice, per www.uscourts.gov): Brett Kavanaugh, $340,000; Neil Gorsuch, $250,000; and Sonia Sotomayor, $87,000. Even new Justice Ketanji Brown Jackson (assumed office on June 30, 2022) received $900,000 as a book advance, four tickets worth about $3,700 for a Beyoncé concert, and $12,500, in total, for her artwork in her chambers.

Senior Justice Clarence Thomas acknowledged that billionaire Harlan Crow, a mega-donor of the Republican Party, paid for his accommodations in Bali in 2019, and a few days later, for his stay at a private club in Monte Rio, California. He disclosed these 2019 freebies belatedly only in his 2023 disclosures because they were “inadvertently omitted at the time of filing.” Further, Thomas justified his delayed action because ethics officials advised that “personal hospitality” from friends need not be disclosed.

WORSE, JUSTICE SAMUEL ALITO ALLEGEDLY “flew on a private jet and vacationed in Alaska with a hedge fund billionaire with interests before the court.” While reported by the media, this freebie was not in his 2023 disclosures because he asked for and was granted a filing extension of 90 days.

Moreover, The New York Times printed a picture of an upside-down US flag on a flagpole in Alito’s home. According to the US Code, the US flag is not to be flown upside down except as a “signal of dire distress or extreme danger” but in January 2021 when the flag was flown in the Alito home, it was largely seen in connection with a specific cause—that allegedly, Trump was robbed of victory in the 2020 presidential poll. It was used by his supporters in staging the Jan. 6, 2021 riot at the US Capitol. Alito dismissed the incident saying the flag was hoisted by his wife, Martha Ann, without his consent, after her altercation with a neighbor.

Interviewed by CNN’s Erin Burnett, Emily Baden, the neighbor, said Alito was “at best mistaken, but at worst, he’s just lying” because the altercation happened in “mid-February” while the upside-down flag was published on Jan. 17, 2021. I watched the interview of Baden saying she was sure of the dates because her then-boyfriend called the police on Feb. 15, 2021, to complain of Martha Ann’s “unprompted harassment” due to a yard sign critical of Trump that Baden put up.

The New York Times subsequently published a new photograph of the “Appeal to Heaven” flag at another Alito home in New Jersey. The flag was used during the US Revolutionary War, but it has become a symbol used by Trump supporters.

THE SCOTUS IS AT PRESENT FACED WITH VITAL CASES linked to the Jan. 6, 2021 riot including one in which Trump’s lawyers argue that the former president cannot be accountable criminally for any, absolutely any, act performed while he was president. And yet Alito, like Thomas, stubbornly declined to recuse in these vital cases, explaining, “My wife is fond of flying flags. I am not.”

While the justices promulgated a code of ethics late last year, its interpretation is dependent on the member concerned. Like international law, the code has no enforcement mechanism.

These deplorable practices, with due respect, are unthinkable in our Supreme Court. In fact, our Court penalizes unethical conduct. To my recollection, two justices have been penalized with fines and disqualification from the practice of law, the first, for not reporting a filial relationship with a bar examinee, and the second, for being the source of a premature leak of a draft decision. The worst is that of a chief justice who was ousted, via a close vote of 8-6, for her failure to file her statement of assets, liabilities, and net worth long before she joined the Court while she was a law professor.

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