We have a judicial enterprise that rules over us with absolutely no one ruling over them.  It was recently reported by the New York Times that Justice Samuel Alito had an upside-down American flag hung outside his home in mid-January 2021, a symbol of the “Stop the Steal” campaign to overturn the 2020 election results.  Alito passed the buck to his wife, Martha-Ann Alito, for flying the flag in response to neighbors whose yard signs she found offensive toward President Trump.  But under the Code of Judicial Conduct, it does not matter whether it was Justice Alito or his wife who flew the flag on his property so long as he knew it was being flown and did nothing to stop it.

Nobody should be all that surprised that the Senate Judiciary Committee Chair Dick Durbin will not hold an inquiry about this new revelation.  The Senate has also been trying to decipher the financing for Thomas’s quarter-million-dollar RV amid other ethics violations, and Leonard Leo has declined to comply with subpoenas related to it.  Yes, the Senate should be acting to resolve this problem, but that seems to have largely stalled at “asking them to recuse.”  And what if Alito and Thomas refuse to recuse voluntarily?  There’s no recourse other than impeachment, and the Senate Judiciary Committee is far from that point, if moving towards it at all.

So, just to review, this isn’t really a Samuel Alito problem, a Clarence Thomas problem, or a John Roberts problem—but it also isn’t even a Senate-dems-who-can’t-muster-the-energy-to-close-the-deal problem.  No, I have come to conclude is that this is an us problem.  Because rather than hurling ourselves headlong into the “Alito must recuse” brick wall of “yeah, no,” we need to dedicate the upcoming election cycle and the attendant election news cycle to a discussion of the courts.

Not just Samuel Alito or Clarence Thomas who happen to go to work every day at the court and not just Dobbs and gun control, which happens to have come out of the very same court, but the connection between those two tales: what it means to have a Supreme Court that is functionally immune from internal norms of behavior, from judicial ethics, from disclosure constraints, and from congressional oversight and why that is deeply dangerous.

Moreover, why justices who were placed on the court to behave as well-compensated partisan politicians would do so in public as well as on paper is a bigger issue.  Until we address these important issues, Justice Alito will continue to fly around the world giving speeches about his triumph in Dobbs, and Clarence Thomas will keep taking gifts and failing to disclose them.  That won’t be the end of the Supreme Court story; it will just be the start of it.

Does the conduct of any of the current Supreme Court justices rise to the level of impeachability?  Impeachment, a political tool that relies on a majority consensus in the U.S. House of Representatives and a trial in the Senate, is the only mechanism for expelling justices.  But, the political standards of impeachment make it virtually impossible.

To date, impeachment attempts have yielded mixed results when it comes to federal judges.  Since the country’s founding, only fifteen federal judges have ever been impeached, with eight being expelled from the bench.  No Supreme Court justice has ever been removed despite two prior impeachment attempts—only one of which resulted in a Senate trial.  Such numbers are wildly ridiculous.  In the real world, bad performers are reprimanded or fired when they do wrong.

Now, take the worst of the worst—the worst lawyers ordinarily become judges because they know they will earn more money, have more power, and become truly unaccountable—and it becomes absurd to believe that only eight out of more than 5,000 federal judges in U.S. history have done something bad enough to warrant removal.  This accounts to a mere 0.2% of judges!  If anything, given their performance over the last several decades, it would be more believable that only 0.2% of judges should remain.

The real problem is that the justices do not abide by the code of ethics that are supposed to govern other federal judges.  Like these other judges, they are literally above the law—except more so.  They have the last word on these matters.  If you want to find out more about our off-the-rails corrupt judicial system, you need to check out our book, which is available here or at your local library and will educate you about and protect you from the system.  This book—particularly chapter 7—provides ways to clean and/or fix the system.