Facing
a mountain of ethics concerns, the
Chief
Justice of the U.S. Supreme Court has
rebuffed Senate investigators, again.
Counting
on John Roberts to fix what’s wrong with the
Supreme Court is a fool’s errand. This was
true before the latest round of scandals
involving Clarence Thomas, and it remains true
in their aftermath. Roberts may be an “institutionalist,”
as he is often labeled by mainstream legal
commentators, but he appears to be just fine
with the direction and management of the
institution he leads. Far from being a
potential savior of the court, Roberts is at
the center of its many burgeoning problems.
On
April 10, the eleven Democratic Senators who
hold a slim majority on the upper chamber’s
judiciary committee cosigned a
respectful letter to
Roberts, imploring him to open an
investigation into Thomas’s failure to
disclose a stunning array
of gifts that
he and his wife Ginni Thomas, the crackpot
uber-right election denier, had received from
Texas billionaire and Republican
mega-donor Harlan
Crow over
the past twenty years. On April 20, they
sent a
second letter,
inviting Roberts to testify on May 2 about the
need for ethics reform on the court.
On
April 25, Roberts rebuffed
the solicitations,
writing “I must respectfully decline your
invitation. Testimony before the Senate
Judiciary Committee by the chief justice of
the United States is exceedingly rare as one
might expect in light of separation of powers
concerns and the importance of preserving
judicial independence.”
Roberts
attached a six-page “Statement
on Ethics Principles and Practices” to his letter, signed by
all nine sitting justices. The statement
asserted that the justices “consult a wide a
wide variety of authorities to address
specific ethical issues. They may turn to
judicial opinions, treatises, scholarly
articles, disciplinary decisions, and the
historical practice of the Court and the
federal judiciary. They may also seek advice
from the Court’s Legal Office and from their
colleagues.”
Roberts’s refusal to testify in
May was not his first snub of the Senate
Judiciary Committee. In 2012, he rejected its
request that the Supreme Court officially
adopt the federal code of conduct.
The
ethics statement further claimed that the
court “takes guidance from” the Judicial
Code of Conduct for U.S. Judges,
although it also correctly noted that the code
“applies by its terms only to lower court
federal judges.” The Supreme Court stands
alone as the only federal judicial body not
bound by an ethics code.
Roberts’s
response was not his first snub of the Senate
Judiciary Committee. In February 2012,
he rejected
the committee’s request that
the court officially adopt the federal code of
conduct. That request was triggered by Thomas’s
failure to report his wife’s income from
the Heritage Foundation, Hillside College, and
other employers on his annual financial
disclosure forms, as required by the Ethics
in Government Act.
After the watchdog group Common
Cause publicly
complained about the issue in
January 2011, Thomas amended
some thirteen-years’ worth of
disclosures.
The
embarrassing episode, however, had no
discernible impact on Roberts. Without
specifically referring to Thomas, Roberts
praised his colleagues in his 2011
Year-End report on the Federal Judiciary as
“jurists of exceptional integrity and
experience whose character and fitness have
been examined through a rigorous appointment
and confirmation process . . . We are all
deeply committed to the common interest in
preserving the Court’s vital role as an
impartial tribunal governed by the rule of
law.”
Roberts
has spent nearly his entire legal career as a
highly partial rightwing operative
In
fact, Roberts has spent nearly his entire
legal career as a highly partial rightwing
operative, dating back to his stint as a clerk
for the late Supreme Court Chief Justice
William Rehnquist after
he graduated from Harvard Law School. In 1981,
Roberts took
a job as
special assistant to then-Attorney General
William French Smith, becoming, in
the words of Washington
Post columnist
Ruth Marcus, a “loyal foot soldier in
President Ronald Reagan’s legal revolution”
aimed at rolling back the regulatory framework
of the New Deal, and restricting the gains of
the civil rights movement. In one particularly
aggressive legal
memo,
he urged the Reagan Justice Department
to support
legislation to
strip the Supreme Court of jurisdiction over
abortion, busing, and school prayer cases. The
proposal was deemed too radical even for the
Reagan Administration, and failed to gain
traction.
Other early
stops in Roberts’s career included
his service as an associate White House
counsel from 1982 to 1986, and his work from
1989 to 1992 as principal deputy solicitor
general in the administration of George H.W.
Bush.
Roberts
left the public sector after
the election of Bill Clinton, but maintained
his role as a Republican insider. According to
investigative reporter Marc Caputo, Roberts
operated as
a behind-the-scenes GOP “consultant, lawsuit
editor, and prep coach for arguments before
the Supreme Court” in the run-up to Bush
v. Gore,
the case that decided the 2000 presidential
election. Roberts was recruited to the Bush
team by none other than Ted Cruz, then a young
and very conservative Harvard-educated lawyer
who had once also clerked for Rehnquist.
Since
assuming the post of Chief Justice, Roberts
has led the court on a rightwing trajectory,
betraying the pledge he made at his 2005
confirmation hearing to
serve in the fashion of a baseball umpire,
“calling only balls and strikes, and not to
pitch or bat.” Under his stewardship, the
court has issued a blistering array of
extremist rulings on voting
rights, gerrymandering, union_organizing, the
death penalty, environmental
protection, gun_control, abortion, campaign
finance,
and the use
of dark money in
politics. His 2013 majority opinion in Shelby
County v. Holder,
which gutted the Voting Rights Act, ranks
among the worst.
Nor
is Roberts above suspicion when it comes to
potential personal conflicts of interest. His
wife Jane Sullivan Roberts has a long
history as
an anti-abortion activist.
She also reportedly made
more than $10 million in
commissions between 2007 to 2014 as a legal
recruiter for blue-chip law firms, some of
which had
business before the Supreme Court.
If
the Senate Judiciary Committee is serious
about reforming the Supreme Court and
restoring the court’s image as a neutral
arbiter of justice, it must take off the kid
gloves. Instead of weakly worded requests for
Roberts’s cooperation, the committee should
subpoena him to testify, and serve notice that
its oversight of the court’s operations is
just getting started.
This
commentary is also posted on The
Progressive
