How the Supreme Court majority will rule on President Obama's Affordable Care Act may well have been foretold months or perhaps years ago — not so much by their questions during argument this week, as by their flagrant displays of bias outside the court, where certain justices regularly behave as dubiously as any sleazy officeholder.
While the public awaits the high court's judgment on the constitutionality of health care reform, it is worth remembering how cheaply Justices Antonin Scalia and Clarence Thomas in particular have sullied the integrity of their lifetime appointments, and how casually Chief Justice John Roberts and their other colleagues tolerate such outrages.
What is most scandalous in Washington, as a wise pundit once suggested, are the things politicians do that are perfectly legal but shouldn't be — an observation that applies with particular force to the Supreme Court, which is not subject to the ethics restrictions applied to lesser judges on the federal bench. That was why Scalia and Thomas, for instance, could appear as guests of honor at a fundraising dinner for the right-wing Federalist Society — which was sponsored by Bancroft PLLC, a major firm involved in litigation against the Affordable Care Act — on the very same day last November that they reviewed an appeal brief on the case from Paul Clement, the Bancroft attorney whose arguments they received so cordially this week.
In fact, Clement sat at a table "sandwiched between" the two justices. Scalia was seated with Senate Minority Leader Mitch McConnell, who had told the Federalists that he would rely on them to help undo the "affront" represented by health care reform. And for good measure, Justice Samuel Alito enjoyed the event at another table nearby.
If they were mere federal district or appeals judges, neither Scalia nor Thomas would have been permitted to attend the Federalist celebration, while Alito's attendance would have been questionable, to say the least. But members of the right-wing majority abuse their immunity from ethics regulation without sanction. Poised to reject the Affordable Care Act with the kind of sweeping opinion that could tear down decades of Commerce Clause jurisprudence, they merit the sharp scrutiny of their motives and conduct that they have largely escaped until now, even as they drift further and further toward the corporate right.
Investigative reports have revealed partisan and ideological ties that the justices themselves have sought to conceal, dating back to Scalia's duck-hunting trip with then-Vice President Dick Cheney, who had pending before the court a lawsuit challenging the secrecy of his Energy Task Force.
No federal judge would have dared to rule in such circumstances, but Scalia dismissed the obvious appearance of conflict with an unbecoming sneer.
As Scott Horton reported in Harpers magazine, Scalia's duck-hunting patrons in Mississippi had brought other vital matters before him to get their way, again in a manner that any self-respecting ethical jurist would instinctively abhor.
More recently, Scalia and Thomas were used as celebrity bait by the ultra-right Koch brothers, David and Charles, to draw well-heeled supporters to a secretive conference on undermining the Obama administration at a fancy Western resort. It would be hard to imagine any activity less appropriate for a Supreme Court justice, unless it was Thomas' wife Ginny accepting huge payments from a tea party organization devoted to repeal of health care reform, which she did in 2010. The justices failed to report any of these screaming conflicts on their disclosure reports, compounding the offense with the coverup.
Alito has likewise ignored the federal judicial ethics rule against political fundraising on several occasions, including at least two events to raise money for the far-right American Spectator magazine and for the Intercollegiate Studies Institute, the original sponsors of video dirty trickster James O'Keefe. It is strange to see a Supreme Court justice associating with such gamy ideological enterprises — and even more surprising to learn that Alito gave a blazing partisan keynote address at a Spectator dinner where he denounced Vice President Joe Biden in highly personal terms. When ThinkProgress reporter Lee Fang approached Alito to ask about his role as a right-wing fundraiser, he snapped that it "isn't important," and his bodyguards threatened to arrest Fang.
The right-wing bloc's cynical attitude toward judicial corruption was expressed most succinctly by Chief Justice Roberts, in his opinion upholding a West Virginia judge who had failed to recuse himself from a major case involving the A.T. Massey Coal Company. Roberts could see nothing wrong with the judge's conduct — even though Don Blankenship, Massey's CEO and principal owner, had donated $3 million to the judge's re-election campaign. That was too much even for Justice Anthony Kennedy — himself a former lobbyist and the son of a lobbyist — who voted with the court's liberal justices to uphold the constitutional right to adjudication by a magistrate unimpaired by the blatant appearance of favoritism.
Now it will be up to Justice Kennedy to step up in defense of honest, true conservatism — against the right-wing judicial activism that would vacate decades of Commerce Clause jurisprudence for a partisan objective, and against the corrupting political misconduct of Thomas, Scalia, and Alito — by joining a majority to uphold the Affordable Care Act. By doing so, he might begin to dispel the partisan taint that has afflicted the court since Bush v. Gore in 2000 — the decision that eventually brought Roberts and Alito onto the court to form their abusive majority.