What can Democrats actually do about Thomas’s and Alito’s corruption?

If you’re a Democrat — or, really, anyone who believes in judicial ethics — it’s hard not to think that Justices Clarence Thomas and Samuel Alito are intentionally mocking you.

Thomas, as ProPublica recently revealed in a series of investigative articles, frequently accepts lavish vacations and other gifts from billionaires closely aligned with the Republican Party. The total value of these gifts is astounding. According to Fix the Court, a group that advocates for ethics and similar reforms at the Supreme Court, Thomas received between $2.4 million and $4 million in gifts during the period from 2004 through 2023.

By comparison, the other 16 justices who served on the Court during those two decades accepted about $700,000 worth of gifts among all of them.

Alito, meanwhile, appears to have abandoned even the pretense that federal judges should appear impartial and nonpartisan. On the bench, Alito has always been the Court’s most reliable vote in favor of whatever outcome the most conservative wing of the Republican Party prefers. Recently, though, he seems to be advertising his unwillingness to give a fair hearing to Democrats and his sympathy for the Christian Right.

What else can one make of the insurrectionist symbols flying outside his two homes (flags that he blames on his wife)? Or Alito’s unwise decision to agree with an undercover activist’s statement that America needs to return “to a place of godliness?”

Democrats, and a whole array of liberal advocates who often align with the Democratic Party, are understandably alarmed by this evidence that two members of the nation’s highest Court care little for their obligation to be ethical and impartial. And a wide array of those advocates want elected Democrats to make some kind of effort to rein in these two justices.

As Jennifer Rubin, the Never Trump Washington Post columnist, recently wrote of Senate Judiciary Chair Dick Durbin (D-IL), “Durbin’s oath of office to protect the Constitution demands he do something.”

But what, exactly, could Durbin — or any other Democrat, for that matter — actually do about Thomas’s and Alito’s dubious relationship with judicial ethics? The honest answer is “not much.” 

Congress, certainly could do a great deal to check these two men’s power. Congress, after all, has the power to impeach and remove justices. 

It also could add seats to the Court, which would quickly be filled by Biden appointees who would effectively neutralize Thomas and Alito’s votes. It could potentially strip the Court of much of its jurisdiction. It could take away some of the Court’s budget — perhaps the parts that pay for Thomas’s and Alito’s law clerks and staff. It could even evict the Court from its marble palace and move the justices’ office space to a shack in Nome, Alaska.

The leading legislative proposal, the Supreme Court Ethics, Recusal, and Transparency Act, would, among other things, allow a justice’s decision not to recuse from a particular case to be reviewed by that justices’ eight colleagues.

But no legislation reforming the Supreme Court, no matter how ambitious or how modest, is likely to pass so long as Republicans control the House of Representatives. And that leaves Democrats with only one remaining tactic: political theater.

The Senate could hold hearings on Thomas’s and Alito’s behavior, but it’s far from clear that a hearing would accomplish anything

On June 10, a broad range of left-leaning advocacy groups wrote to members of the Senate Judiciary Committee, calling on those senators to “use the full power of the Senate Judiciary Committee to investigate and respond swiftly to these newest developments in the ongoing ethics crisis at the U.S. Supreme Court.”

The letter is signed by a broad cross-section of liberal organizations that frequently ally with Democrats: the AFL-CIO and several major unions; civil rights organizations like the NAACP and the Human Rights Campaign; and groups like the Leadership Conference on Civil and Human Rights and the Alliance for Justice that focus on judicial appointments. It appears to be authored by the Leadership Conference.

As chair of the Senate Judiciary Committee, Durbin certainly could call for hearings investigating Thomas and Alito, but it’s not entirely clear what such a hearing could accomplish.

For starters, what new information is a congressional investigation into Thomas or Alito supposed to uncover? We already know, based on past investigations by journalists, that Thomas has taken millions of dollars in gifts from politically active Republican billionaires. Perhaps an additional investigation would uncover more gifts, but would anyone’s perception of Thomas really change if we learned that, instead of accepting as much as $4 million worth of such gifts, he instead accepted $5 million or $6 million?

Similarly, the Alito family’s insurrectionist flags have been widely reported. The New York Times even did an in-depth report on the neighborhood conflict that inspired Martha-Ann Alito to raise an upside-down American flag outside of their home. Similarly, many of Justice Alito’s most political statements were recorded and widely broadcast, in some cases by Alito himself or his allies. Video of a 2020 speech to the conservative Federalist Society, which the Times described as “unusually political,” can be watched by anyone at the Society’s YouTube channel.

Broadly speaking, congressional hearings can accomplish two goals: lay the groundwork for future legislation or shine a light on an under-covered issue, and perhaps direct more media coverage of that issue.

Again, no legislation is likely to pass for as long as Republicans control the House. And it’s not like there’s been a dearth of press attention on Thomas’s and Alito’s various scandals. Alito himself even complained, in a recording made without his knowledge, that his Court is “being so targeted by the media.”

Effective political theater, moreover, depends on drama. Think of the climactic moment in the Army-McCarthy hearings, when attorney Joseph Welch demanded of Sen. Joe McCarthy, “Have you no sense of decency?” It’s certainly possible to imagine a similarly dramatic moment occurring if Thomas or Alito were hauled in front of a Senate committee to justify their behavior. But that’s not going to happen.

Last year, when the Judiciary Committee asked Chief Justice John Roberts to testify on the Court’s ethical scandals, Roberts refused, citing “separation of powers concerns and the importance of preserving judicial independence.” Of course, senators could always try to force Roberts to appear by subpoenaing him, but how are they supposed to enforce such a subpoena when doing so requires a federal court order — and federal courts ultimately answer to the justices of the Supreme Court?

So, while the Senate certainly could try to hold hearings on the Court’s ethics scandals, those hearings would be unlikely to bring the kind of drama that could drive press coverage because it is unlikely that any interesting witnesses could be compelled to testify. Instead, the most the Judiciary Committee could likely muster is a dull panel of judicial ethics experts, most of whom would say that Thomas and Alito behaved very badly.

The Republican Party is at fault for the Court’s ethics scandals, not the Democrats

There’s no reason to doubt the good faith of advocates who want the Senate to pressure out-of-control justices to behave ethically and professionally. Far too many of these advocates, however, have allowed a tactical disagreement with Durbin to make Democrats the villain in this narrative and undermine the party in November.

The letter from the liberal groups calling for a Senate investigation is measured in tone, and it does praise Durbin and Sen. Shelton Whitehouse (D-RI) for calling on Alito to recuse from cases related to the January 6 insurrection. But much of the commentary on the Supreme Court’s scandals seems to blame Democrats for the bad behavior of Republicans.

Consider, for example, Harvard law professor Laurence Tribe’s reaction to one of the many news stories about insurrectionist flags flying outside one of Alito’s homes:

After Durbin called upon Alito to recuse from January 6-related cases, the New Republic’s Hafiz Rashid reacted with the dismissive headline “Dick Durbin Finally Does Something After Jaw-Dropping Alito Scandal.” DailyKos’s Joan McCarter wrote that “Senate Judiciary Committee Chair Dick Durbin is failing at his job of holding the Supreme Court accountable.”

It’s already hard enough for rank-and-file voters to understand which party is to blame for Thomas’s and Alito’s behavior. Both men are Republicans appointed by Republican presidents, but journalists do not traditionally identify Supreme Court justices with their party (i.e. “Justice Clarence Thomas (R)” or “Justice Elena Kagan (D)”) in the same way that we would for members of Congress. 

Perhaps this norm should change. Until it does, that makes it difficult for voters who do not follow politics closely to understand that the two ethically challenged justices are Republicans who are opposed by most Democrats and protected by their fellow partisans in Congress.

What many news consumers are seeing, however, is a wave of tweets and published articles blaming Democratic fecklessness for the fact that Republican justices continue to misbehave. That sort of coverage is only likely to discourage voters from turning out for Democrats in November.

Maybe it would be worth risking this sort of confusion if additional pressure on Durbin or other Democrats might lead to legislative reforms or if it might inspire Durbin to hold the kind of hearing that could shame Thomas and Alito and drive the kind of press coverage that would boost Democratic turnout.

But, as I’ve already explained, Durbin doesn’t really have the power to do either of these things. No bill will pass a Republican House. And, as a practical matter, Durbin can’t make a Supreme Court justice testify if the justice does not want to.

At the end of the day, the future of the Supreme Court will be decided by the November election. If President Joe Biden prevails, he is likely to appoint more judges like his Supreme Court appointee Justice Ketanji Brown Jackson, a mainstream liberal. If Donald Trump prevails, he is likely to fill the bench with Alitos.

So I’d urge writers and activists who prefer Jackson to Alito to keep their eyes on the prize. The question of whether the Senate Judiciary Committee conducts what is likely to be a fruitless investigation is a sideshow. The main event is the election.