The Constitution Didn't Make Clarence Thomas Do It

Ian Millhiser argues that "The Constitution makes it virtually impossible to discipline or remove a corrupt Supreme Court justice." Not quite so.  

The impossibility is a result of how the Constitution is being applied.  Is it necessary to have a system where power is held by corruptly partisan actors who refuse to penalize even blatant wrongdoing?  

There are certain things that are natural results of the system in place. Prof. Segall (including in one of his books) keeps on saying the Supreme Court is "not a court," but the damn if they act like other courts do.  Why is it a "court" when a state supreme court splits 5-2 to overrule a recent ruling to enable Republican gerrymandering that matches the current control as was cited by me in my Supreme Court wrap-up?  

The Supreme Court has more discretion and power than a state court in some ways but that is a silly line. First, state courts have powers over state law federal courts do not have and regularly are blatantly voted into office by partisan elections.  Second, "court-ness" should not turn on the degree.  

"Courts" do not follow artificial above-the-fray rules by definition here.  Human judging involves values.  Our system also encourages judicial review, which the people as a whole continue to support.  This adds additional power to the courts.  The personnel has and always will affect the judgments.  And, Breyer was not that wrong to say that in many cases (including those of some importance) that crosses ideological lines.  

The current Supreme Court is a result of the same Constitution as the ones that came before it.  Abe Fortas was pressured to resign for a lot less.  Justices also didn't do various things that are done today.  They had less of a public presence even if there was various mixing frowned upon today. Justices do not have power games with the president these days.

The culture of being beyond restraint also is just that -- a culture -- not something constitutionally required.  Sen. Durbin (or even at times Sen. Whitehouse) need not keep on talking about how "Chief Justice Roberts has to do something."  As if the Senate is just a potted plant.  They might not be able to reduce judicial salaries.  They still can do other things.

Roberts basically implies a binding ethics law with some teeth would have constitutional problems.  This is not really true.  The Constitution itself does not appear to say this.  Suck-ups might say so but there is actual support beyond liberal-leaning academics that say otherwise.  "The Constitution" didn't make us do this.

Basic constitutional principles have gone into hibernation over the years as seen by the Jim Crow South.  The constitutional system we have helps that in some ways.  Still, the fact Jim Crow ended (it did; not enough, but we are still not in the age of 1950 now) shows the potential there.

The system is supposed to have checks and balances.  The impeachments of Trump showed the limits there.  But, the CONSTITUTION itself was not to blame (permanent barriers to the office having a 60-vote bar is not unreasonable; only 57 senators voted for it)  alone.  The inability to even require people to show up to claim immunity still is a thing. That's fucking insane. Steve Bannon is criminally charged and convicted.  He appeals and gets away with it.  The CONSTITUTION doesn't require that.  

I am going to read Joan Biskupic's latest book on the Trump Supreme Court.  Sounds painful.  I thought when Scalia died that we finally -- after fifty years -- would have a re-balancing. Silly silly boy.  Republicans -- the Constitution didn't make them do it -- marched toward an even worse Supreme Court.  This includes while the people were clearly voting for Biden. Democracy got a "fuck u."  The Constitution alone is not the reason.

The Constitution alone is not the reason that even some liberal academics cannot admit the breadth of the problem.  Academics do not want to admit what the Republicans did was special and/or wrong. Maybe, some do and are concerned.  But, they refuse to accept that the packed, corrupt Court (thanks to a rapist insurrectionist), requires a strong response. Not just tinkering while (maybe a bit sadly) trusting our stolen car to the thieves.  

The people and the Senate have some power.  Part of this power is to admit to ourselves what is happening.  Change comes in degrees and in various ways.  Kavanaugh was and is unfit.  Democrats would not have the power to stop him.  Should they have just said, "Sigh... oh well"?  No.  People rightly called him out and continue to do so.  This matters.  The Supreme Court's reputation faltering matters.  How is not quite clear but it matters.

Constitutional change happens, both for good (same-sex marriage) and bad (fictional "major questions doctrines").  Congress over the years regulated the courts, including the Supreme Court, in a variety of ways. More changes can come there. An expanded Court is not blocked by the Constitution.  Changes come that in the past would have been strongly opposed.  We see that even today (see again MQD). 

Millhiser references an earlier discussion (an originalist take by a conservative) that argues "good behavior" is broader than the criteria found in the impeachment clause.  The article further argues that the intent and practice at the time were that a judge who misbehaved could be removed by other means.  Historical developments (partisan choices during the Jefferson Administration) more than the Constitution itself changed this.

I think that makes sense.  Looking at Constitution, the Supreme Court (and lower courts) are not made up of people who serve for life. They serve for good behavior. And, the system in place guards against the fiction that great power can be restrained by self-restraint. Finally, even beyond how politics corrupts the impeachment check, there are various ways to do it.

Early history backs up the argument.  The 1790 Crimes Act provided that a judge convicted of bribe-taking "shall forever be [not] qualified to hold any office of honour, trust or profit under the United States."  No impeachment proceeding is required.  A federal judge found guilty of murder, piracy, or making counterfeit securities could have been put to death. No separate proceeding was necessary because they were a judge.  

The 1990s case involving the proper procedures for convicting by impeachment of a federal judge (Walter Nixon v. U.S.) generally said impeachment was a political question.  During oral argument, there was some concern about impeaching someone merely by "address." That is, automatically if they committed a crime.  

Nonetheless, there is a logic to the argument here, which the authors use the Necessary and Proper Clause to defend (to apply "good behavior").  I am not a mere originalist.  Two hundred years of history matters and this possibility was stillborn, even when a federal judge committed treason by supporting the South during the Civil War.  

Still, the general idea holds merit.  It is even applied to some extent as shown by limited ethics rules such as justices being required by law to recuse themselves in certain cases. 

The article does not think justices have some special dispensation here unlike certain justices themselves.  Why should it?  Do justices leave Congress alone if it breaks the Constitution?  An argument is made that lower courts are optional, so Congress has more power over them.  But, Congress has over the years regulated the Supreme Court too, including their jurisdiction, circuit riding terms, where they work (used to be in the Capitol), and quorum rules.  

I'm inclined to think there is nothing stopping recused justices to be by statute replaced by retired justices or lower court justices just like a district court judge can fill in on the court of appeals, even if the Senate voted (with the usual less degree of concern) for a district court judge.  The complaint that filling in for justices is special (as if they cannot just wait and find another case to decide the question in most cases) is overblown. 

I think the "outside of impeachment" concept might be more constitutionally appropriate than the "term limits without an amendment" concept for justices.  I think we should be open to new things.  But, it's just part of the wider story.  The Constitution is not as bad as people make it out to be.  If we are willing to work with it.  Like the Catholic Church, if not quite so long, we have and should continue to do so.

There are limits though experience has shown that limits regularly are not quite as limiting as people say they are. Even there, the limits are not just a creation of the Constitution.  If we cannot understand basic things, we are in more trouble than we are.  

ETA: I checked out Joan Biskupic's new book on the Trump Court.  I don't think it is for me. I have been a general observer of the Supreme Court.  Others might find the details and insights novel.  

I mostly found them totally unsurprising.  It seems (I looked in the index and skimmed the book) to not find the Trump Administration's death penalty spree worth mentioning.  The Dobbs opinion didn't get much either, including the behind-the-scenes stuff talked about in Wall St. Journal.  

I continue to be angry (some act like things were lost after Bush v. Gore; these people simply do not make their case) about these events. We get a few details that I did not quite know. Even then, nothing really worth plodding through over three hundred pages of the book.  Worth a skim. Maybe.

Maybe for someone else, but I think even court watchers might rightly expect a bit more inside material than is available here.  

(I don't want to be unfair here.  There is some good background material, including on Trump's White House counsel, Donald McGahn, and the push for Trump judges.  The "Trump Effect" is nicely used.  But, I still know that sort of thing, and yeah, reading it over, the death penalty stuff was skipped.)