There has been a lot of talk about an out-of-control Supreme Court. The court has embarrassed itself, historically (as in Dred Scott) and recently.Two justices have embarrassed the court by accepting outrageous gifts, i.e., millions of dollars. Clarence Thomas, from Harlan Crow, and Samuel Alito from Paul Singer. There is no convincing evidence that these gifts were simple hospitality like an invitation to dinner or a wedding, for which there would normally be some sort of informal reciprocity. These two consistently opined in ways that favored the donor, in some way politically and possibly financially. Persons of great wealth have affairs so intertangled that their interests can be hard to track.
Other justices have accepted various less obvious benefits such as speaking engagements. Since there was no direct obvious Quid pro quo, it was not bribery, according to so called, “conservatives.” I prefer to call them recalcitrans, e.g., recalcitrant politicians. It fits their behavior better than conservative. They won’t give up outmoded ways. Originally, recalcitrans were pro-segregation Democrats.
The only way to discipline a justice is impeachment. That is problematic in our polarized Congress. The justices are functionally beyond the reach of the Justice Department, but donors are not. Anyone who makes a gift to a federal employee that is more that their salary could be prosecuted for bribery. They might not get convicted, but it would give them something to think about.
Alito in his leaked and final opinion declared there is no Constitutional right to abortion. Apparently, he was unaware of: Amendment IX. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. James Madison explained the necessity of this amendment. If you were to list the rights then some zealot could argue that any right not explicitly listed did not exist. Just what Alito did. There are many rights that are not even though of because they are axiomatic. Such as the right to breath, drink, eat or move about. Yet these incipient rights can be curtailed by an overzealous government.
The three most recent SCOTUS appointees seem to have lied in their congressional testimony regarding their position on abortion and other issues. What can we do? It has been proposed that congress pass a code of ethics for the court, but that has a problem with separation of powers, each branch sets its own rules. If there is a gross violation of good conduct there is a complex process called impeachment, for Congress to discipline another branch. It does not seem to be useful partly because it is too political. The possibility of impeachment has caused a president and a Supreme Court justice to eventually resign, but that is hardly an efficient mechanism.
One suggestion is to rebalance the Supreme Court. Appoint more justices. This would be a little easier than an amendment, it would not require approval by individual states as well as Congress. The number of justices is not constitutional, and today’s workload certainly justifies a larger court. Unfortunately, this could get out of control and result in an unmanageably large court. Like Congress.
Short of another amendment it might be possible for Congress with its power of the purse to pass a code of conduct that applies to anyone receiving a government paycheck. Money can only be spent if authorized by Congress. While a bill of impeachment needs a super majority for conviction in the Senate, an appropriation needs only a simple majority to pass. The House could include in the annual appropriation bill a code of conduct, just as the military has a code of conduct, The bill could contain as a condition for payment no violation of the code of conduct. If it passes the code applies to everyone who draws a federal paycheck, from the President down to private Doe. If it does not pass, no one gets paid, a strong motivation to pass. This is not too different from civil employment. No work, no pay. Granted some privately funded individual could elect to serve without pay, but that would be a virtual admission of an intent to violate.
Ken Obenski is a forensic engineer, now safety and freedom advocate in South Kona. He writes a biweekly column for West Hawaii Today. Send feedback to obenskik@gmail.com