Tyranny, Thy Name is SCOTUS

Apr 26, 2023

We can be forgiven for thinking that Clarence Thomas set a high-water mark for judicial corruption that would be hard for his colleagues to surpass. Just yesterday, a new investigation from The Intercept and the Project on Government Oversight deepened what we know of Thomas and billionaire donor Harlan Crow’s financial ties, highlighting how Crow purchased a second citizenship in the tax haven island nation of St. Kitts and Nevis, which makes tracking Crow’s financial transactions—including his gifts to Thomas—extremely difficult. The investigators point out that this will complicate Senate Finance Committee Chair Ron Wyden’s request that Crow provide evidence that he “complied with all relevant federal tax and ethics laws.” Nothing worrisome about a top U.S. justice being financially entangled with a billionaire who changed his citizenship to evade U.S. law!

But also yesterday, Politico reported that nine days after Neil Gorsuch’s confirmation to the Supreme Court in 2017, he finally found a buyer for a property he had been trying to sell for two years. The buyer? Brian Duffy, the head of major BigLaw firm Greenberg Traurig, which has an active practice before the Supreme Court. Gorsuch reported the income from the sale on his financial disclosure, but left the box identifying the purchaser blank. I can’t imagine why.

Yesterday, my colleagues Dylan and Toni wrote for Common Dreams that “Democrats are scared: scared of losing, scared of rocking the boat, scared of recognizing the gravity of the situation, scared of doing something about it. For the party that claims to be the ‘mature adults in the room’ who sanctify American institutions and laws, Democrats have, in practice, settled for hand-wringing and symbolic admonishments as they clutch the tatters of long-lost norms and congressional cordiality.”

“Enough is enough,” they wrote. “Durbin and the entire party need to finally fight the erosion of judicial integrity. The Supreme Court, and much of the federal judiciary, has turned away from even a veneer of respect for the law... It is time to say so out loud and publicly challenge them for it.”

It is time. There is no way to restore public trust in these institutions without rocking the boat; without mustering courage; without real accountability. Even when the scandals that erode public trust are technically legal, the public knows they’re wrong. Political elites’ hand waving about the limits of the vague and loophole-riddled ethics laws they shape are unpersuasive.

We have a forthcoming white paper from our Senior Fellow Eleanor Eagan that will outline six principles to guide ethics reform for rebuilding public trust, which we look forward to sharing with you soon. Our job here at RDP is to shame this elite misconduct, whether it’s flagrant financial corruption coming from conservative justices on the Supreme Court, or the fecklessness of Congressional Democrats hoping that someone else will do their hard job for them, and ceding the battle before it’s even fought. But the public needs follow through from the Democrats in seats of power. And it’s time we demand it.

Exposing Exxon’s SCOTUS Scheme

Last Thursday, I wrote in “Exxon’s Unethical Supreme Court Play” for The American Prospect about the ethics standards that ExxonMobil’s lawyers were urging Alito and Coney Barrett to circumvent in briefs filed before the Supreme Court, considered last Friday. The story got significant traction for highlighting the potential for corruption before it happened, with major consequences for corporate accountability. For those who missed this story, I’ll talk about it below.

On Monday morning, we learned what happened in that conference: the Court decided to deny the oil and gas companies’ last-ditch plea to prevent them from being held accountable by dozens of city and state governments around the country. This is a win with potentially massive implications. We’ll likely never know for sure if public pressure played into the justices’ decision to turn away the oil majors, but we can celebrate this historic milestone for a promising route for fossil fuel accountability.

Over the past several years dozens of U.S. cities, counties and states from Hawai’i to Rhode Island have sued oil and gas companies for their decades-long campaigns of corporate deception, bringing state law claims including violations of consumer protection laws and torts claims of nuisance, trespass and negligence. These climate liability cases follow a similar playbook to the enormously successful lawsuits brought by state Attorneys General against tobacco companies back in the nineties, which secured hundreds of billions of dollars for health care costs, and weakened industry influence groups and misinformation. Most of these local governments are suing many of the big oil and gas companies, including ExxonMobil, Chevron, Shell, BP, TotalEnergies and ConocoPhillips.

Big Oil has used every tool in their formidable arsenal to delay and derail these cases, including pushing for the cases to be removed to federal courts, where the corporations would be more likely to secure victory. But courts of appeals across the nation have been skeptical of this ploy. Six of the nation’s thirteen Circuit Courts have now agreed that these cases should proceed in state court, where they were initially filed. Enter, SCOTUS. In 2022, the oil and gas companies appealed five of those Circuit Court decisions to the Supreme Court, seeking to have the Court’s corporate-friendly right-wing majority cut off this path for relief.

The problem for Big Oil is that Alito owns stock in two oil companies named in most of the suits, ConocoPhillips and Phillips 66. Alito has historically recused himself from cases in which they’re involved. Coney Barrett’s father was a top lawyer for Shell for almost thirty years, so she too has a conflict of interest. As a lower-court judge, she had previously recused herself from Shell’s cases for that reason, but she stopped doing so when she joined SCOTUS. As I pointed out in the piece, “since the Court doesn’t have an official ethics policy, there isn’t a way to force her to do so. Yet the conflict of interest is still apparent.”

Now, Exxon’s lawyers had a scheme to get around the recusal issue that Alito faced (and Coney Barrett should have faced). While four of the five petitions before the Supreme Court involved ConocoPhillips, Phillips 66 and Shell directly, one did not. Boulder’s lawsuit was only brought against ExxonMobil and Suncor. Exxon’s lawyers told the Court that the Boulder case was an “ideal vehicle” to resolve all the other cases, because it “involves a smaller set of defendants than those cases and is thus less likely to present recusal issues.” Across the petitions they urged the Court to take up Boulder’s case first, and hold the other petitions pending a decision on the merits in the Boulder case.

Since all of these cases are linked, I argued that a blanket recusal on Alito’s part was the only ethical option. “Strategically employing a deceptively narrow view of what constitutes a conflict of interest in order to use one case as a vehicle to decide dozens of others is plainly unethical, however ExxonMobil wants to spin it.”

On Monday, we learned that Alito recused himself from considering all five petitions, though Coney Barrett did not. Now that the Supreme Court has declined to entertain the fossil fuel companies’ protestations, we may finally see the companies face trial in state courts across the country.

This victory is worth celebrating. And yet the void of Supreme Court accountability remains. Cases like these show how unenforceable even basic ethical standards are for SCOTUS. If Alito hadn’t recused, the public would have had no established channels to hold him accountable for that failure, even though it violates federal law.

“If we had a healthier, more transparent and accountable ethics regime for the Supreme Court,” I wrote for the Prospect, “none of this would be possible. For a start, top public officials, from the Supreme Court to Congress, should not be allowed to hold stocks in individual companies. The Supreme Court should be bound to a strict code of ethics, and justices removed from their position if they are discovered to be in willful violation of the laws they are empowered to interpret. Supreme Court justices should not hold lifetime appointments; term limits are supported by 2 in 3 Americans, and would go a long way to depoliticize the Court.

“The current status quo—great power, no accountability—is a recipe for tyranny.”

Will Susan Rice’s Departure Mean A Reset on Immigration?

On another front, we learned this week that Susan Rice is stepping down in May as Director of Biden’s Domestic Policy Council, and Neera Tanden is being talked openly about as a possible successor. You may remember our past coverage of Rice ruffling quite a few establishment feathers, including our former researcher Dan Boguslaw’s piece for the Prospect last spring covering criticism of Rice for creating an “abusive and dehumanizing” workplace.

Over at least the past year, it became clear that Susan Rice was at the center of the administration’s cruel immigration policies, as Pablo Manríquez recapped yesterday for The New Republic. And last week, a New York Times investigation shone a spotlight on Susan Rice’s callousness towards migrant children separated from their families and forced into child labor. The article includes a photo of a hand-written note from Rice calling immigration advocates’ position on border restrictions causing family separations “BS,” writing that “what is leading to ‘voluntary’ separation is our generosity to UCs,” which stands for unaccompanied children.

We will certainly not be missing Rice in the West Wing. With Neera Tanden and others angling for the role, we hope the Biden White House takes this opportunity to reset its immigration policy, and recognizes that unapologetic humanity towards migrants—policy that shows real ethical backbone—could make inroads with disaffected voters. There are so many fronts on which the administration could tackle the government’s crisis of ethics. If they remain complacent with so many distinct and yet interconnected instances of cruelty and corruption across the federal government, we can only expect that public trust in government institutions drops to new lows. The bottom, as we’ve pointed out before, is not far away.

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