From Gallop in 2022:
25% of Americans have confidence in the Supreme Court, down from 36% in 2021
Confidence is down among Democrats and independents this year (2022)
I recently contacted an old friend (Tom), someone I haven’t spoken with in years. I was surprised he got into law and, as a hobby, has studied the Supreme Court for over 20 years. After we caught up with our personal lives, I was interested in speaking with him about his knowledge and perspective of S.C. I especially wanted to know what he thought of the recent publication by ProPublica, where Clarence Thomas and his wife have been receiving abundant gifts and expensive vacations on behalf of a billionaire. Second, I was interested in how he felt about Chief Justice Robert’s polite refusal of not wanting to speak to the Senate Judiciary Committee about this controversy. Third is the overall negative trend of the Supreme Court's low approval rate.
ME: WHY ARE SOME DEMOCRATS STILL MAD AT OBAMA FOR NOT ASSERTING HIMSELF AS PRESIDENT AGAINST THE REPUBLICAN SENATE?
Tom: In 2016, Mitch McConnell, the Senate Majority leader, said that in an election year, he would not consider Merrick Garland for the Supreme Court. President Obama nominated Mr. Garland seven months before the election in November. In addition, McConnell refused to hold hearings or meet with Garland. McConnell's refusal to hold hearings for Obama's nominee violated the plain meaning of Article II, Section 2 of the U.S. Constitution. In the opinion of many Democrats, Obama should've never given up on allowing Garland to have a hearing. Obama should have been more aggressive and assertive and garnered more media attention. Some say his lack of experience in executive matters contributed to this event.
In 2018, in a speech in Kentucky, Senate Majority Leader Mitch McConnell said, "One of my proudest moments was when I looked Barack Obama in the eye, and I said, 'Mr. President, you will not fill the Supreme Court vacancy.'" Did he not violate the Constitution by not considering the selection of Merrick Garland for the Supreme Court?
ME: DID THE DEMOCRATIC SENATE PLAY HARDBALL WITH THE KAVANAUGH OR BARRETT HEARINGS FOR THE SUPREME COURT?
Tom: As for Kavanaugh and Amy Coney Barrett, the Democrats on the judiciary committee were too easy on them. During the hearings, not one Democrat mentioned the dismal rating that Kavanaugh received from the American Bar Association. Confronting him on that fact may have produced different results. Regarding Coney Barrett, none of the Democrats on the Judiciary Committee asked her to withdraw her nomination, considering the 2020 elections were underway. The Democrats didn't have the votes to reject the confirmation, but they could have put up a more challenging fight to gain media attention on this nomination. Considering the importance of the Supreme Court, it doesn't appear that the Democrats were playing hardball with these confirmations.
ME: WHAT DID MITCH MCCONNELL DO IN 2020 TO ANGER DEMOCRATS?
Tom: In 2019, Mitch McConnell was asked if he would use the same standard for Merrick Garland (Obama's nomination) on future candidates while the Senate Majority Leader. He smiled and said, "Probably not." 2020 Amy Coney Barrett was confirmed to the Supreme Court one week before the election. Some legal scholars have claimed with this hypocrisy, many Americans have lost confidence in the court.
ME: WHAT'S THE CONTROVERSY WITH CLARENCE THOMAS AND THE SUPREME COURT? IS THOMAS IN TROUBLE? Tom: According to an investigation done by ProPublica, for over 20 years, Justice Clarence Thomas has received expensive gifts and luxury trips to private resorts from Harlan Crow. Mr. Crow is a Texas billionaire and has extensively supported Republican politicians, the Federalist Society, and conservative media.
According to a federal law passed after Watergate, Supreme Court justices must disclose gifts and trips to the government. He still needs to reveal these gifts. While posing as a public servant, Thomas has also lived a rich and luxurious life, greatly supported by Harlan Crow. One might realize that Mr. Crow may expect something quid pro quo in return; we can only speculate how this relationship may affect how Justice Thomas rules on cases.
This behavior would violate the judiciary's code of ethics if Thomas were a federal judge. But that judiciary code doesn't apply to the Supreme Court justices. One has to wonder why it doesn't.
In a statement, Thomas said, "Early in my tenure at the court, I sought guidance from my colleagues and others in the judiciary and was advised that this sort of personal hospitality from close personal friends, who did not have business before the court, was not reportable." He says, "I have endeavored to follow that counsel throughout my tenure and have always sought to comply with the disclosure guidelines."
It appears Clarence Thomas is tone deaf; while receiving these gifts and taking these trips, did he not once wonder what the public would think about his behavior? Does he even care? Is he too insulated from dealing with the ordinary person that he doesn't see an issue of having a Supreme Court Justice take luxurious trips with a billionaire?
To answer your last question, I think Clarence Thomas still has much security in his current position. As you may realize, Chief Justice Roberts was appointed by George Bush in 2000, and he doesn't appear interested in having Congress investigate this issue further. In other words, this behavior appears to be condoned by the majority of the Supreme Court. Does one need to wonder why the S.C. has such a low approval rate?
ME: IF THE COURT IS CORRUPT OR A JUSTICE ENGAGES IN QUESTIONABLE BEHAVIOR, WHAT ARE THE RESPONSIBILITIES OF CONGRESS?
Tom: According to the Constitution, the U.S. Congress is empowered to fire any federal judge via the process of impeachment by the House and conviction by the Senate.
Weeks ago, the Judiciary Committee attempted to investigate Clarence Thomas's controversial behavior with outside influences (gifts and lavish vacations). On April 20, Senator Dick Durbin, Democrat from Illinois, invited Chief Justice Roberts to testify before the panel about ethics reform on the court. Justice Roberts declined the invitation and essentially said to Senator Durbin that his appearance before the committee could harm the independence of the judiciary.
Just a few of the Democrats in the House of Representatives have called for Justice Thomas's resignation after learning of the acceptance of lavish trips and gifts from Crow. In addition, there has been no attempt to subpoena either Thomas or Roberts to speak to the Senate Judiciary Committee. Will that change moving forward, or will Senator Durbin sweep it under the rug, thinking that at least he had tried to get Chief Justice Roberts to testify?
It appears that the Supreme Court will only police itself with this current composition of justices. If Congress doesn't create ethical guidelines or subpoena the Chief Justice to appear before the committee, then there are no checks and balances we associate with the other branches. Congress must remind the court that they serve the republic and not vice versa.
A little more perspective on Chief Justice John Roberts: did he publicly speak out when Mitch McConnell denied Merrick Garland a hearing and eventually a vote? Why was he silent when McConnell, along with Senate Republicans, voted to abolish the filibuster to help confirm Gorsuch, Kavanaugh, and Barrett? Was he silent in these two instances because he finally had a Court he wanted?
ME: WHAT HAPPENED IN 2000 WITH BUSH VERSUS GORE?
Tom: Late in 2020, the Florida Supreme Court ruled that manual recounts in this past Presidential election should continue – where the statistically significant number of undervotes in all counties would need to be counted (over 61,000 undervotes). However, the Florida Supreme Court offered little ballot guidelines except that they have to discern the "clear intent of the voter." Some Florida counties used punch card ballots at the time, and some voters failed to fully punch out the paper tab – hence a "chad," leaving their intentions unknown.
Days later, the U.S. Supreme Court (7–2 ruling) decided that some methods and standards of the recount process violated the Constitution's equal protection clause. For further context, this clause of the 14th Amendment of the U.S. Constitution requires that a state not "value one person's vote over that of another."
On December 12, 2000, the court ruled 5–4 on the remedy of the matter, with the majority holding that the Florida Supreme Court's decision had created a new election law—a right reserved for the state legislature—and that no recount could be held in time to satisfy a federal deadline for the selection of state electors. This meant that the constitutional protection of each vote should not be subjected to a timeline was not applied. Regarding the dissent, Justice John Paul Stevens claimed that "counting every legally cast vote cannot constitute irreparable harm." Other dissenting justices wrote that even though the recount process may be flawed, the Constitution protects citizens, so again, each vote should not be subject to a timeline.
This decision awarded Florida's 25 electoral college votes to Republican candidate George W. Bush. This decision gave Bush the necessary electoral college votes to win the Presidency. (According to the late Justice Sandra Day O'Connor, in her book "First," she claimed at the time the late Justice Antonin Scalia joined the majority opinion but privately called the equal protection rationale, "as we say in Brooklyn, a piece of shit.”)
One must also realize that three current justices, appointed by President Trump, Chief Justice John Roberts, Amy Coney Barrett, and Brett Kavanaugh, each worked for the Republicans in the 2000 ballot recount battles in Florida.