I’m Withdrawing My Admission to Practice Before a Court Whose Members Are Above the Law*
Is the Supreme Court’s ethical collapse accelerating? Or thanks to award-winning investigative journalism, are we becoming increasingly enlightened to the magnitude of endemic rot the corrupt justices can no longer hide from public view?
Could be some of both.
Since October 2020, my blog has included more than a dozen posts expressing concern for the court’s rapidly decomposing credibility and positing what could slow the decline and resurrect its status. See Notes, below. During that time, we have seen the Federalist Society hat trick — three more justices who lied their way onto the court — join with others to begin the process of dismantling personal and bodily autonomy and rendering “liberty” an empty vessel. We have seen lifetime appointees take on the role of super-legislators by finding political decisions with which the super-majority disagrees, manufacturing a “case or controversy” where a party suffered no injury, deciding the “issue” with manufactured doctrines, thereby undoing longstanding precedent, and substituting its policy preferences for those of the politically accountable branches of government.
I am increasingly ashamed of my admission to practice before an institution whose lifetime members, once exposed of corruption, brazenly flaunt their entitlement and immunity. They are proof that “no one is above the law” is a glaringly false truism. If the inferior courts followed the Supreme Court’s example, one-third or more of federal court judges would be in violation of reporting laws and the Code of Conduct for United States Judges. A quarter or more would be under criminal investigation and possible indictment. Apparently, it’s not judicial misconduct when a justice does it because there is no higher court to declare it improper.
It’s time. When I was first admitted to the Supreme Court Bar, I felt a sense of honor, even though membership for me was little more than another bar admission to list on a resume (at the top, of course), and the certificate to proudly display on my office wall above the others. Like most members, I’ve never argued and never will argue before the court. I am no longer honored to be a member of the Supreme Court Bar. I won’t be missed.
My friend Leonard Burningham turned in his membership to the Chief Justice and the clerk of the Supreme Court. He included the following photograph of his certificate in the notice which serves as a perfect metaphor of the court’s fractured ethics, integrity, and standing:
I had this innocent, albeit naïve, belief that courts in the United States were sacrosanct. Excepting an outlier here or there who would be subject to mandatory and proportional discipline, judges were independent of corrupt influences and politics and made decisions based on cases and controversies and the law and facts properly presented before them. They left sweeping legislation to the politically accountable branches of government. I understood the Supreme Court was the last word on the meaning of the Constitution as applied to state and federal legislation and executive action. I believed the highest court in the land led the inferior courts of the United States by example, setting the highest standards of fidelity, integrity, and competence.
I recognized, however, that the Supreme Court owes its membership to partisan politics, sometimes contentious. A nominee’s jurisprudential orientation can make all the difference where constitutional interpretation is nuanced and often at the margins. Barriers to overreach, however, were solidly in place to keep the court’s exercise of authority and jurisdiction in check.
I also believed, unreasonably it turns out, that purchasing access and influence was a crime for both the litigant buyer and the jurist seller, that any justice who had a personal interest or stake in a case and its outcome would, as a matter of personal integrity, fidelity to the institution, and ethical necessity, recuse from participation, and that the appearance of impropriety mattered almost as much as actual impropriety. What does it say about his own values, sense of right and wrong, and personal integrity — not to mention common sense and judgment — when a justice engages in conduct in private which, if uncovered or disclosed as required under federal law, signals that justice’s independence is undermined and may have been compromised for decades?
I am ashamed that April 25, 2024, will not live in infamy. It’s no wonder that a collective of judges — for whom “no one is above the law” has no application — insisted on accommodating the former president for whom they have like affinity. I could never have imagined that at least four members of the United States Supreme Court would, with a straight face, entertain the argument that Article II immunizes a president from criminal prosecution for having his political rival murdered or staging a violent coup to remain in office after the voters resoundingly elected the other candidate. Or that at least four members of the court would take extraordinary steps to assure the person who appointed them and/or with whom they are politically and philosophically aligned is given king status and never held to account for the most serious crimes a president can commit against voters in a democracy.
In my view, the corruption on the Supreme Court has risen to a crisis of constitutional dimension. In a moment of self-reflection — were that remotely possible — the court should take a lesson from its 5–4 decision in Caperton v. A.T. Massey Coal Co. (Massey).
Massey was hit with a $50,000,000.00 judgment for various misconduct.
West Virginia elects state judges including those who sit on its appellate courts. In the 2004 election, an attorney, Brent Benjamin, challenged an incumbent justice on the State Supreme Court of Appeals. Massey’s chairman and principal officer Don Blankenship knew the State Supreme Court of Appeals would be hearing Massey’s appeal. Blankenship contributed $3,000,000.00 in support of Benjamin’s candidacy and causes in which Benjamin was interested. Benjamin won by a slim margin.
Before Massey filed its appeal, however, Caperton moved to disqualify newly elected Justice Benjamin under the Due Process Clause of the U.S. Constitution and the West Virginia Code of Judicial Conduct. The basis for the motion was the $3,000,000.00 conflict caused by Blankenship, Massey’s chairman and principal officer. Benjamin denied the motion, finding no bias for or against any party in the case.
In a remarkable return on investment for Massey, the State Supreme Court of Appeals vacated the $50,000,000.00 judgment.
In a 5–4 decision, United States Supreme Court held that the Due Process Clause required Benjamin’s disqualification. Writing for the slim majority, Justice Kennedy explained:
“It is axiomatic that ‘[a] fair trial in a fair tribunal is a basic requirement of due process.’ . . . As the Court has recognized, however, ‘most matters relating to judicial disqualification [do] not rise to a constitutional level.’ . . .
“Th[is] . . . Court concluded that the Due Process Clause incorporated the common-law rule that a judge must recuse himself when he has ‘a direct, personal, substantial, pecuniary interest’ in a case. This rule reflects the maxim that ‘[n]o man is allowed to be a judge in his own cause’ because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. . . .
“As new problems have emerged that were not discussed at common law, however, the Court has identified additional instances which, as an objective matter, require recusal. These are circumstances ‘in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.’ . . .
“We conclude that there is a serious risk of actual bias — based on objective and reasonable perceptions — when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.
“Applying this principle, we conclude that Blankenship’s campaign efforts had a significant and disproportionate influence in placing Justice Benjamin on the case. . . .
“It is true that extreme cases often test the bounds of established legal principles, and sometimes no administrable standard may be available to address the perceived wrong. But it is also true that extreme cases are more likely to cross constitutional limits, requiring this Court’s intervention and formulation of objective standards. This is particularly true when due process is violated.
(Emphasis added.)
Justices Roberts, Scalia, Thomas, and Alito dissented, of course.
With recent history and Massey as a guide, I have no difficulty imagining suitable, equally extreme cases in which the Due Process Clause of the United States Constitution requires disqualification of a Supreme Court justice or two. The obvious problem is these justices are allowed to be judges in their own cause.
Notes:
It’s Not Just Stormy Who Drew the Short Straw April 28, 2024
Conservatives Hate Activist Judges — Except When They Don’t July 2, 2023
Alito, Thomas, And the False Truism That No One Is Above the Law June 24, 2023
Justices Don’t Need No Ethics May 7, 2023
Don’t Waste Ink on a Code of Ethics for Justice Thomas April 9, 2023
Special Counsel Jack Smith Is No Clarence Thomas . . . Thank God November 27, 2022
Will SCOTUS Uphold Compulsory Pelvic Exams of Interstate Travelers? July 17, 2022
The Supermajority on The Court Is Poised to Euthanize Democracy July 10, 2022
Can the Supreme Court’s Rapidly Decomposing Credibility Be Revived? January 30, 2022
‘Liberty’ Does Not Mean What You Think It Means December 5, 2021
Protesting The High Court’s Legitimacy: It’s Reigning Snowflakes in The Court October 3, 2021
Isn’t It About Time the Supreme Court Adopted a Code of Ethical Conduct? October 24, 2020
R.VanWagoner https://medium.com/@richardvanwagoner publishes. https://richardvanwagoner.medium.com/subscribe
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner. Rob’s second novel, a beautifully written suspense drama that takes place in Utah, Wyoming, and Norway, dropped on November 17, 2020. Available on Amazon, Barnes and Noble, Apple Bookstore and your favorite local bookshop, this novel, The Contortionists, which Rob himself narrates for the audio version, is a psychological page-turner about a missing child in a predominantly Mormon community. I have read the novel and listened to the audio version twice. It is a literary masterpiece. The Contortionists is not, however, for the faint of heart.