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      US supreme court pursuing rightwing agenda via ‘shadow docket’, book says

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      Conservative justices on the US supreme court consciously broke with decades-old congressional rules and norms to shift laws governing religious freedom sharply to the right through a series of shadowy unsigned and unexplained emergency orders, a new book reveals.Five of the six conservatives who now command the majority on the US’s most powerful court have rammed through some of their most contentious and extreme partisan decisions using the so-called “shadow docket” – unsigned orders issued frequently late at night, in literal and metaphorical darkness. The orders do not reveal who voted for them or why, often providing one-line explanations of the legal thinking behind them.The switch from openly argued cases, aired in public, to the unaccountability of the shadow docket was made purposefully during the pandemic in cases dealing with religious liberty, concludes Stephen Vladeck, an authority on the federal courts at the University of Texas law school. He warns that the trend is merging with the current ethics scandals surrounding the conservative justice Clarence Thomas to damage the legitimacy of the court and threaten a full-blown constitutional crisis.Vladeck exposes the largely unnoticed shift towards furtive justice in his new book, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. He shows how rightwing justices have abused the court’s emergency powers to run roughshod over the longstanding norm that shadow docket orders should be used sparingly and with extreme caution.Rightwing justices are now deploying such orders dozens of times each term. Over three terms alone, from 2019 to 2022, the court granted emergency relief in more than 60 cases: effectively overturning the considered decisions of lower courts through rushed, unexplained rulings.Among those orders were decisions that have had profound and nationwide impact over some of the most hotly disputed areas of public life, from abortion to immigration, voting rights, the death penalty and religious practices. Many appear to align more closely with Republican political priorities than with legal principles.One such order alone, the decision on the shadow docket to block the Biden administration’s January 2022 requirement that large employers mandate Covid vaccinations for their workforce, affected more than 83 million Americans – about a quarter of the US population.“The rise of the shadow docket reflects a power grab by a court that has, for better or worse, been insulated from any kind of legislative response,” Vladeck writes.The author chronicles how the most disturbing use of the shadow docket came with the rewriting of constitutional protections for religious liberty. The dramatic shift followed the death of the liberal justice Ruth Bader Ginsburg and her replacement in 2020 with a devout Catholic rightwinger, Amy Coney Barrett.The switch gave the conservative majority sufficient votes to overcome all resistance to ramping up use of the shadow docket, including from the chief justice, John Roberts, who though conservative has expressed mounting unease about the practice.The change in tactics could be seen almost immediately. Within weeks of taking her seat, Barrett joined four other rightwingers – Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh – to drive through a major change in the constitutional understanding of religious liberty, blocking New York state Covid restrictions on the numbers of worshippers allowed to gather in churches.The order was unsigned and gave virtually no explanation for a decision that profoundly changed the law of the land, rolling back government regulations where they touched upon religious practices. It was issued at four minutes before midnight on the day before Thanksgiving – a moment that would guarantee minimal media attention.The ruling was all the more extraordinary as by then New York had scaled back its Covid restrictions and churches no longer had to limit congregation sizes. So the court’s change in the law was moot.The same five rightwing justices went on to impose their will on religious liberty laws with similar late-night one-sentence rulings knocking back state Covid restrictions in California, New Jersey and Colorado. In total, the majority issued emergency injunctions against state Covid rules on religious grounds six times in four months.The sudden spate of shadow docket orders that followed Barrett’s arrival on the court was not accidental, Vladeck says. The justices could have taken up several pending cases in full court that would have addressed the issue of religious freedoms in open hearings on the merits, yet they chose to go the obscure shadow docket route.“Here we have the court not just using emergency applications to change substantive legal principles, but doing so even as they are considering requests to make the same changes through merits decisions,” Vladeck told the Guardian.Vladeck links the rise of the shadow docket to the increasing isolation of the supreme court and its disconnection from public opinion. The growing use of the shadow docket also mirrors the polarisation and toxification of American politics.Vladeck warns that the growing trend towards jurisprudence produced in darkness is endangering the legitimacy of the nation’s most powerful court. Public confidence in the court is already at a historic low, compounded by the recent revelations that Thomas accepted lavish gifts from the Republican billionaire Harlan Crow.“The shadow docket is a symptom of a larger disease,” Vladeck said. “The disease is how unchecked and unaccountable the court is today, compared to any of its predecessors.” More

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      US ethics watchdog calls on Clarence Thomas to resign over undisclosed gifts

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      The conservative supreme court justice Clarence Thomas must resign, an ethics watchdog said on Tuesday, citing revelations about Thomas’s failure to declare lavish gifts and financial support from a Republican mega-donor, Harlan Crow.In an open letter to the scandal-hit Thomas, Noah Bookbinder of Citizens for Responsibility and Ethics in Washington, or Crew, cited a “grave crisis of institutional legitimacy currently facing the supreme court”.“For the sake of the court and for the sake of our democracy which depends on a judiciary that the public accepts as legitimate and free from corruption, we urge you to resign.”He added: “Your conduct has likely violated civil and criminal laws and has created the impression that access to and influence over supreme court justices is for sale.”Thomas has said he did not declare gifts from Crow including luxury travel and resort stays because he was advised not to do so, but will do so in future.He has not commented on reports that Crow bought from him property in which his mother still lives rent-free; that Crow paid for the private schooling for Thomas’s great-nephew, who the justice said he was raising like a son; and that the conservative activist Leonard Leo secretively arranged payment of tens of thousand dollars to Ginni Thomas, the justice’s rightwing activist wife.Leo and Crow deny wrongdoing.In the case of the school fees, Thomas did declare a gift from another donor for the same purpose. Critics say this shows he knew he should have declared gifts from Crow.Supreme court justices are notionally subject to ethics rules for federal justices but in practice govern themselves.Democrats in Congress have called for Thomas to be impeached and removed. That is a nonstarter, as Republicans hold the House, where impeachment would begin, and will protect the 6-3 conservative majority which has handed down major rulings including the removal of abortion rights. Democrats have also called for ethics reform.Senate Democrats sought to call the chief justice, John Roberts, to testify about ethics rules. Roberts refused. Democrats cannot use a subpoena to compel testimony – from Roberts, Thomas or any other justice – because without the ill and absent Dianne Feinstein of California they do not have the required majority.Last week the judiciary committee chair, Dick Durbin, urged Roberts to confront the Thomas issue, saying the chief justice “has the power in his hands to change this”.Durbin also said the “tangled web” around Thomas “just gets worse and worse by the day”.On Tuesday, Crow rebuffed a request from the Senate finance committee, citing tax concerns, for a list of gifts given to Thomas.An attorney for Crow, Michael Bopp, called the request “a component of a broader campaign against Justice Thomas and, now, Mr Crow, rather than an investigation that furthers a valid legislative purpose”.Democrats on the Senate judiciary committee sent Crow a similar letter.In his letter to Thomas, Bookbinder said: “It has become clear that over the last several decades you have engaged in a longstanding pattern of conduct to accept and conceal gifts and other benefits received from … a billionaire political activist, and have disregarded your ethical duty to recuse yourself from cases in which you have a personal or financial conflict of interest.”Crow insists he is simply good friends with Clarence and Ginni Thomas, with whom he refrains from discussing politics or business before the court.But outlets including the Guardian have shown that groups linked to Crow – a collector of historical memorabilia including paintings by Hitler – have had business before the court during the period of his friendship with Thomas.Bookbinder said reports about Thomas were “contributing to a catastrophic decline in public confidence that threatens to undermine the entire federal judiciary”.Public polling shows confidence in the court at historic lows.In 1969, Justice Abe Fortas resigned from the supreme court, in part for accepting payment for outside activity. Fortas was paid $15,000 to teach summer school and took $20,000 from a foundation run by a convicted fraudster.Bookbinder told Thomas: “We know of no other modern justice who has engaged in such extreme misconduct.“Indeed, your receipt of consistent, lavish gifts and favors from a billionaire with an interest in the direction of the court is so far outside the experience of most of the American people, and so far beyond what most would consider acceptable, that it cannot help but further diminish the court’s credibility.”He also charged Thomas with failing to recuse himself from cases involving his wife’s “personal or financial interests”, notably after the 2020 election, in a case regarding whether to release documents related to Donald Trump’s attempt to stay in power.Thomas was the sole justice to say the documents should not be released. When they were, they showed Ginni Thomas’s extensive involvement in Trump’s election subversion.Bookbinder said: “It is increasingly difficult for people to trust that you are making decisions only based on the law and a commitment to justice.“… The judiciary is built entirely upon a foundation of public trust. If that falls away, the institution will fail. While we appreciate your many years of public service, your conduct has left you with only one way to continue faithfully serving our democracy.“For the sake of our judiciary and the sake of people’s faith in its legitimacy, you must resign.” More

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      in Elections

      Kentucky man gets record-setting 14 year sentence for role in Capitol attack

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      A Kentucky man with a long criminal record has been sentenced to a record-setting 14 years in prison for attacking police officers with pepper spray and a chair as he stormed the US Capitol with his wife.Peter Schwartz’s prison sentence is the longest so far among hundreds of Capitol riot cases. The judge who sentenced Schwartz on Friday also handed down the previous longest sentence – 10 years – to a retired New York police department officer who assaulted a police officer outside the Capitol on 6 January.Prosecutors had recommended a prison sentence of 24 years and 6 months for Schwartz, a welder.US district Judge Amit Mehta sentenced Schwartz to 14 years and two months in prison, followed by three years of supervised release.Mehta said Schwartz was a “soldier against democracy” who participated in “the kind of mayhem, chaos that had never been seen in the country’s history.”“You are not a political prisoner,” the judge told hm. “You’re not somebody who is standing up against injustice or fighting against an autocratic regime.”Schwartz briefly addressed the judge before learning his sentence, saying, “I do sincerely regret the damage that January 6 has caused to so many people and their lives.”The judge said he didn’t believe Schwartz’s statement, noting his lack of remorse. “You took it upon yourself to try and injure multiple police officers that day,” Mehta said.Schwartz was armed with a wooden tire knocker when he and his then-wife, Shelly Stallings, joined other rioters in overwhelming a line of police officers on the Capitol’s Lower West Terrace, where he threw a folding chair at officers.“By throwing that chair, Schwartz directly contributed to the fall of the police line that enabled rioters to flood forward and take over the entire terrace,” prosecutor Jocelyn Bond wrote in a court filing.Schwartz, 49, also armed himself with a police-issued “super soaker” canister of pepper spray and sprayed it at retreating officers. Advancing to a tunnel entrance, Schwartz coordinated with two other rioters, Markus Maly and Jeffrey Brown, to spray an orange liquid toward officers clashing with the mob.“While the stream of liquid did not directly hit any officer, its effect was to heighten the danger to the officers in that tunnel,” Bond wrote.Before leaving, Schwartz joined a “heave ho” push against police in the tunnel.Stallings pleaded guilty last year to riot-related charges and was sentenced last month to two years of incarceration.Schwartz was tried with co-defendants Maly and Brown. In December, a jury convicted all three of assault charges and other felony offenses.Schwartz’s attorneys requested a prison sentence of four years and six months, saying his actions were motivated by a “misunderstanding” about the 2020 presidential election. Donald Trump and his allies spread baseless conspiracy theories that Democrats stole the election from the Republican incumbent.“There remain many grifters out there who remain free to continue propagating the ‘great lie’ that Trump won the election, Donald Trump being among the most prominent. Mr Schwartz is not one of these individuals; he knows he was wrong,” his defense lawyers wrote.Prosecutors said Schwartz has bragged about his participation in the riot, shown no remorse and claimed that his prosecution was politically motivated. He referred to the Capitol attack as the “opening of a war” in a Facebook post a day after the riot.Schwartz has raised more than $71,000 from an online campaign titled Patriot Pete Political Prisoner in DC. Prosecutors asked Mehta to order Schwartz to pay a fine equaling the amount raised by his campaign, arguing that he shouldn’t profit from participating in the riot.Schwartz was on probation when he joined the riot and his criminal record includes a “jaw-dropping” 38 prior convictions since 1991, “several of which involved assaulting or threatening officers or other authority figures”, Bond wrote.More than 1,000 people have been charged with federal crimes related to January 6. Nearly 500 of them have been sentenced, with over half getting terms of imprisonment. More

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      in US Politics

      Mar-a-Lago employee aids investigation into whether Trump hid documents

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      Federal prosecutors have gained the cooperation of a person who worked at Donald Trump’s Mar-a-Lago resort, the New York Times reported, as they seek a more complete picture of whether the former US president took steps to remove classified documents from a storage room in response to a subpoena for their return.The identity of the cooperating witness and the extent of the information divulged remains unknown, but the person was reported as having turned over a picture of the storage room where the vast majority of the classified documents at the property had been located.The development comes as the special counsel Jack Smith has renewed efforts to focus on whether the failure by Trump to fully comply with a subpoena last year demanding the return of any classified documents was a deliberate act of obstruction, multiple people familiar with the matter said.Last June, the Trump lawyer Evan Corcoran helped draft a sworn statement attesting to a “diligent search” for any classified documents. Corcoran returned some papers to the justice department, but his search was proved to be incomplete when the FBI later seized 101 classified documents.To understand whether Trump decided to hide classified documents after receiving the subpoena, investigators have been examining Trump’s handling of any classified documents, how and where they were stored, why the subpoena was not fully complied with, and gaps in surveillance footage.The special counsel recently issued more subpoenas to Mar-a-Lago employees – including the chefs in the kitchen and a housekeeper who has been called in at least twice – to the point that nearly everyone who works at the property has been quizzed, the people said.To resolve the issue about the gaps in the surveillance footage, the special counsel last week subpoenaed Matthew Calamari Sr, the Trump Organization’s security chief who became its chief operating officer, and his son Matthew Calamari Jr, the director of corporate security.Both Calamaris testified to the federal grand jury in Washington on Thursday, and were questioned in part on a text message that Trump’s valet, Walt Nauta, had sent them around the time that the justice department last year asked for the surveillance footage, one of the people said.The text message is understood to involve Nauta asking Matthew Calamari Sr to call him back about the justice department’s request, one of the people said – initially a point of confusion for the justice department, which appears to have thought the text was to Calamari Jr.But Nauta has emerged as a central player in the incomplete subpoena response, after he was seen on the surveillance footage going in and out of the storage room to collect and return boxes both before and after the subpoena was issued to Trump in May of last year.The scrutiny around Nauta has long been focused on whether Trump enlisted his help to remove classified documents from the storage room and take them to his office or elsewhere before Trump’s lawyers searched the room when they completed their incomplete subpoena response.Nauta himself has turned into a dead-end for investigators when, last fall, the justice department threatened to charge him with obstruction or making false statements to the FBI after he gave differing accounts to investigators in an effort to scare him into cooperation.skip past newsletter promotionafter newsletter promotionBut the move backfired. Nauta’s lawyer informed the justice department that his client would never again talk to investigators unless he was charged or unless he was offered an immunity deal like what was offered to Trump adviser Kash Patel, according to multiple people familiar with the matter.In a statement, a Trump spokesman said of the investigation: “This is nothing more than a targeted, politically motivated witch-hunt against President Trump that is concocted to meddle in an election and prevent the American people from returning him to the White House.”The special counsel had not made a decision either way as of Friday, one of the people said, and the threat of charges was the last interaction that Nauta has had with investigators. Likewise, Patel’s last interaction was when he testified to the grand jury pursuant to his immunity deal.Some people inside the justice department believe that threatening Nauta with prosecution so early on in the investigation was a mistake, and that they could have taken a lighter approach that could have led to answers for issues that have since cropped up, one of the people said.After losing Nauta, investigators have turned to other witnesses who could shed light on his role. In recent interviews, they have asked whether Nauta removed boxes containing classified documents when he was in the storage room at the time of the subpoena, and where he went with them. More

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      in US Politics

      Republicans thwart Democrats’ push to stiffen supreme court ethics rules

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      Arguing that the US supreme court has “the lowest ethical standards” of a court in the country, Senate Democrats on Tuesday demanded tighter rules on the nine justices but ran into resistance from Republicans who accused them of being bitter over recent conservative rulings.Democrats had convened a hearing of the Senate judiciary committee after a series of media reports on entanglements between two of the court’s conservative justices and parties with interests in its cases. These includes Clarence Thomas’s acceptance of luxury travel and a real estate deal from Republican megadonor Harlan Crow, and Neil Gorsuch’s sale of a property to a law firm executive with business before the court. Both were interactions the two justices did not fully disclose.The committee’s Democratic chair Dick Durbin, a senator from Illinois, said: “We wouldn’t tolerate this from a city council member or an alderman. It falls short of the ethical standards we expect of any public servant in America. And yet the supreme court won’t even acknowledge it’s a problem.“Ethics cannot simply be left to the discretion of the nation’s highest court. The court should have a code of conduct with clear and enforceable rules so justices and the American people know when conduct crosses the line. The highest court in the land should not have the lowest ethical standards.”But to Republicans, the Democrats’ calls for Thomas to be investigated and for the court to accept more stringent ethics rules represent nothing more than sour grapes. Last year, the supreme court’s six conservative justices handed down decisions that upended American life by overturning the precedent established by Roe v Wade to allow states to ban abortion, expanding the ability for Americans to carry concealed weapons without a permit, and reducing the Environmental Protection Agency’s ability to regulate power plant emissions.Lindsey Graham, the top Republican on the panel, alluded to these rulings to argue Democrats were simply trying to undermine the court’s conservative majority.“This assault on justice Thomas is well beyond ethics. It is about trying to delegitimize a conservative court that was appointed through the traditional process,” Graham, a senator from South Carolina, said.Durbin had invited supreme court chief justice John Roberts to the hearing, but he declined to attend, citing the need to keep the court separate and free from congressional interference, while sending along a “statement on ethics principles and practices” signed by all of the court’s nine justices. Federal law requires judges, including supreme court justices, recuse themselves from any matter “in which his impartiality might reasonably be questioned”, but unlike other judges and federal employees, the court has no formal ethics code.Democrats say the nine highest judges in the country do not have ethics rules comparable to other judges or even many federal employees, and have introduced two pieces of legislation to impose a code of conduct and other requirements. Neither measure appears to have much of a chance in this Congress, where Republicans control the House of Representatives and could use the filibuster to block any legislation in the Senate.Before the hearing began, the Democrats’ push won an endorsement from J Michael Luttig, a former appeals court judge and noted conservative legal thinker who said Congress does have the authority to establish such standards.He wrote in a letter to the committee: “There should never come the day when the Congress of the United States is obligated to enact laws prescribing the ethical standards applicable to the non-judicial conduct and activities of the supreme court of the United States, even though it indisputably has the power under the constitution to do so, but paradoxically, does not have the power to require the court to prescribe such standards for itself.”Luttig was joined by progressive scholar Laurence Tribe, who wrote to the committee: “I regard legislation to impose ethical norms in a binding way on the justices as eminently sensible. Put simply, I see such legislation as a necessary though probably not sufficient response to the current situation.”Neither men opted to testify. Instead, Democrats heard from invited legal scholars who generally agreed that Congress had the power to implement a code of conduct on the supreme court, should they choose to do so. Experts invited by the Republican minority, meanwhile, said Congress did not have the power to impose a code of conduct on the supreme court, and downplayed the severity of the reports about the court’s ethics.Michael Mukasey, a former attorney general under George W Bush, said in the hearing, said: “It’s impossible to escape the conclusion that the public is being asked to hallucinate misconduct, so as to undermine the authority of justices who issue rulings with which the critics disagree, and thus to undermine the authority of the rulings themselves.” More

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      in US Politics

      Leaked abortion draft made us ‘targets of assassination’, Samuel Alito says

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      Samuel Alito said the decision he wrote removing the federal right to abortion made him and other US supreme court justices “targets of assassination” but denied claims he was responsible for its leak in draft form.“Those of us who were thought to be in the majority, thought to have approved my draft opinion, were really targets of assassination,” Alito told the Wall Street Journal in an interview published on Friday.“It was rational for people to believe they might be able to stop the decision in Dobbs by killing one of us.”Alito wrote the ruling in Dobbs v Jackson, the Mississippi case that overturned Roe v Wade, which established the right to abortion in 1973.Alito’s draft ruling was leaked to Politico on 2 May last year, to uproar and protest nationwide. The final ruling was issued on 24 June.On 8 June, an armed man was arrested outside the home of Brett Kavanaugh, with Alito one of six conservatives on the nine-justice court. Charged with attempted murder of a United States judge, the man pleaded not guilty.The conservative chief justice, John Roberts, voted against overturning Roe, but the three rightwingers installed by Republicans under Donald Trump ensured it fell regardless.Progressives charged that a conservative, perhaps the hardline Alito, might have orchestrated the leak in an attempt to lock in a majority for such a momentous decision.Alito said: “That’s infuriating to me. Look, this made us targets of assassination. Would I do that to myself? Would the five of us have done that to ourselves? It’s quite implausible.”The leak was investigated by the supreme court marshal, without establishing a perpetrator.Saying the marshal “did a good job with the resources that were available”, Alito said he had “a pretty good idea who is responsible, but that’s different from the level of proof that is needed to name somebody”.Alito said the leak “was a part of an effort to prevent the Dobbs draft … from becoming the decision of the court. And that’s how it was used for those six weeks by people on the outside, as part of the campaign to try to intimidate the court.”He also said the leak “created an atmosphere of suspicion and distrust”. The justices “worked through it”, he said, “and last year we got our work done … but it was damaging”.Last November, after a bombshell New York Times report, Alito denied leaking information about a decision in a 2014 case about contraception and religious rights.His Wall Street Journal interview seemed bound to further anger Democrats and progressives. Justices regularly claim not to be politically motivated, but even with a Democrat in the White House the court has made other momentous conservative rulings, notably including a loosening of gun-control laws.Joe Biden’s administration has shied from calls for reform, including the idea justices should be added to establish balance or give liberals a majority, reflecting Democratic control of the White House and Senate.Alito told the Journal he did not “feel physically unsafe, because we now have a lot of protection”. He also said he was “driven around in basically a tank, and I’m not really supposed to go anyplace by myself without the tank and my members of the police force”.Complaining that criticism also stoked by corruption allegations against two more conservatives, Clarence Thomas and Neil Gorsuch, were “new during my lifetime”, Alito said: “We are being hammered daily, and I think quite unfairly in a lot of instances.“And nobody, practically nobody, is defending us. The idea has always been that judges are not supposed to respond to criticisms, but if the courts are being unfairly attacked, the organised bar will come to their defense.”Alito said legal authorities had, “if anything … participated to some degree in these attacks”.He declined to comment on reporting by ProPublica about Thomas’s friendship with Harlan Crow, a Republican mega-donor who has bestowed gifts and purchases which Thomas largely did not disclose.But Alito did complain about how Kavanaugh was treated when allegations of sexual assault surfaced during his confirmation process.“After Justice Kavanaugh was accused of being a rapist … he made an impassioned speech, made an impassioned scene, and he was criticised because it was supposedly not judicious, not the proper behavior for a judge to speak in those terms.“I don’t know – if somebody calls you a rapist?”Accusations against Kavanaugh included attempted rape while a high school student. On Friday, the Guardian reported that new information showed serious omissions in a Senate investigation of the allegations, mounted when Republicans controlled the chamber.Polling shows that public trust in the supreme court has reached historic lows.“We’re being bombarded,” Alito complained, “and then those who are attacking us say: ‘Look how unpopular they are. Look how low their approval rating has sunk.’“Well, yeah, what do you expect when … day in and day out, ‘They’re illegitimate. They’re engaging in all sorts of unethical conduct. They’re doing this, they’re doing that’?”Such attacks, he said, “undermine confidence in the government [as] it’s one thing to say the court is wrong; it’s another thing to say it’s an illegitimate institution”.With some court-watchers, the interview landed heavily.Robert Maguire, research director for Citizens for Responsibility and Ethics in Washington, an independent watchdog, said: “There is no depth to the pity [justices] – and Alito in particular – feel for themselves when they face public criticism.” More

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      in US Politics

      The US supreme court’s alleged ethics issues are worse than you probably realize | Moira Donegan

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      It was a short letter. John Roberts, chief justice of the US supreme court, was brief in his missive to Democratic senator Dick Durbin, who chairs the Senate judiciary committee. Citing “separation of powers concerns and the importance of preserving judicial independence”, Roberts declined to appear before the committee to discuss disturbing recent revelations of ethics violations at the court.Congress is meant to exert checks on judicial power – to investigate or even impeach judges who abuse their office or interpret the law in ways that violate its spirit, and to affirm that the elected branches will hold more sway over policy than the appointed one. But the chief justice’s show of indifference to congressional oversight authority reflects a new reality: that there are now effectively no checks on the power of the court – at least none that Democrats have the political will to use – and that the justices can be assured that they will face no repercussions even if they act in flagrant violation of ethical standards. It seems that they intend to.The committee summoned Roberts to testify because it appears that he’s not exactly running a tight ship. On 6 April, an investigation by ProPublica found that Justice Clarence Thomas had, over decades, accepted millions of dollars’ worth of private plane flights, “superyacht” trips and luxury vacations from the Texas billionaire and conservative megadonor Harlan Crow – and that, in alleged violation of federal ethics law, he had not disclosed almost any of it.Subsequent reporting revealed that Crow had in fact bought Thomas’s childhood home in Savannah, Georgia, where the justice’s elderly mother still lives, along with several plots on the block. After paying Thomas for the real estate, the billionaire cleared local blight, made significant renovations to the house and allowed Thomas’s mother to continue living there, rent-free.None of those transactions had been detailed on Thomas’s ethics forms, either. In addition to the soft influence Crow would have been able to buy with his extensive largesse, the billionaire’s generous gifts also seem to have created a direct conflict of interest for Justice Thomas: Crow’s firm had business before the US supreme court at least once, and Thomas did not recuse himself from the case.It is not Thomas’s first time in ethical hot water. He was famously accused of sexual harassment by multiple women, including Anita Hill, during his time in the Reagan administration as head of the employee-rights protection watchdog, the Equal Employment Opportunity Commission. He has been accused of having perjured himself in his subsequent testimony about his behavior toward Hill at his confirmation hearings.During his long tenure on the court, he has repeatedly had trouble filling out his financial disclosure forms correctly. Once, he failed to report more than half a million dollars in income that his wife, the conservative activist Ginni Thomas, received from the rightwing Heritage Foundation. He said at the time that he had misunderstood the forms. That was also his excuse regarding Harlan Crow’s largesse.Thomas claims that he was advised that he did not have to report “hospitality”. It is a loophole in the ethics code that is meant to relieve judges of having to report, say, barbecue dinners at the homes of their neighbors – not, as Thomas claims he took it to mean, luxury yacht tours of Indonesia.Although Thomas may be uniquely prolific in his alleged ethical violations, the problem isn’t unique to him. Politico revealed this week that just nine days after his confirmation to the US supreme court in April 2017, Justice Neil Gorsuch sold a log cabin in Colorado to Brian Duffy, the chief executive of the prominent law firm Greenberg Traurig. Before Gorsuch’s confirmation, the justice and the other co-owners of the home had tried for two years to sell it, without success.Since the sale, Duffy’s firm has had business before the court at least 22 times. Gorsuch did disclose the income from the sale on financial disclosure forms, but failed to mention that the buyer was a big shot at one of the country’s largest law firms who would regularly bring cases before Gorsuch at his new job.It’s certainly possible that Duffy simply liked the house, and that the convenient timing of his purchase so soon after Gorsuch’s confirmation to the court was a mere coincidence. And it seems reasonable to believe Thomas and Crow when they say that they are sincere friends, if less reasonable to believe Thomas when he claims that he misunderstood his disclosure obligations. But corruption need not be as vulgar and direct as a quid pro quo: it can be the subtle machinations of influence and sympathy that occur in these relationships, inflected both by money and by closeness, that lead the justices to see cases as they otherwise wouldn’t, or act in ways contrary to the integrity of their office and the interests of the law.skip past newsletter promotionafter newsletter promotionBad intent by the justices need not be present for the mere appearance of corruption to have a corrosive effect on the rule of law, and both Gorsuch and Thomas have allowed a quite severe appearance of corruption to attach itself to the court. Both have claimed that they are such intelligent and gifted legal minds that they should be given lifelong appointments of unparalleled power, and also that they have made innocent mistakes on legal forms that they are too dumb to understand.The claim strains credulity. What it looks like, to the American people who have to live under the laws that the supreme court shapes, is that Thomas has long been living lavishly on the dime of a rightwing billionaire who wants rightwing rulings, and that Gorsuch conveniently managed to sell a house he didn’t want at the precise moment when he became important enough to be worth bribing.The chief justice doesn’t seem very worried about this appearance of impropriety. In light of these alarming ethics concerns, Roberts’ curt rejection of the committee’s invitation to testify speaks to an evident indifference to ethical standards, or a contempt for the oversight powers of the nominally coequal branches. Ironically enough, his nonchalance has made the reality even more plain than it was before: the court will not police itself. The other branches need to show the justices their place.
      Moira Donegan is a Guardian US columnist More

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      in US Politics

      Proud Boys leader a scapegoat for Trump, attorney tells January 6 trial

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      A defense attorney argued on Tuesday at the close of a landmark trial over the January 6 insurrection that the US justice department is making the Proud Boys leader Enrique Tarrio a scapegoat for Donald Trump, whose supporters stormed the US Capitol.Tarrio and four lieutenants are charged with seditious conspiracy for what prosecutors say was a plot to stop the transfer of presidential power from Trump to Joe Biden after the 2020 election.In his closing argument, the defense lawyer Nayib Hassan noted Tarrio was not in Washington on 6 January 2021, having been banned from the capital after being arrested for defacing a Black Lives Matter banner. Trump, Hassan argued, was the one to blame for extorting supporters to “fight like hell” in his cause.“It was Donald Trump’s words,” Hassan told jurors in Washington federal court. “It was his motivation. It was his anger that caused what occurred on January 6 in your beautiful and amazing city. It was not Enrique Tarrio. They want to use Enrique Tarrio as a scapegoat for Donald J Trump and those in power.”Seditious conspiracy, a rarely used charge, carries a prison term of up to 20 years.Tarrio is one of the top targets of the federal investigation of the riot, which temporarily halted certification of Biden’s win.Tarrio’s lawyers have accused prosecutors of using him as a scapegoat because charging Trump or powerful allies would be too difficult. But his attorney’s closing arguments were the most full-throated expression of that strategy since the trial started more than three months ago.Trump has denied inciting violence on January 6 and has argued that he was permitted by the first amendment to challenge his loss to Biden. The former president faces several civil lawsuits over the riot and a special counsel is overseeing investigations into efforts by Trump and his allies to overturn the election.A prosecutor told jurors on Monday the Proud Boys were ready for “all-out war” and viewed themselves as foot soldiers for Trump.“These defendants saw themselves as Donald Trump’s army, fighting to keep their preferred leader in power no matter what the law or the courts had to say about it,” said Conor Mulroe.Tarrio, a Miami resident, is on trial with Ethan Nordean, Joseph Biggs, Zachary Rehl and Dominic Pezzola. Nordean, of Auburn, Washington, was a Proud Boys chapter president. Biggs, of Ormond Beach, Florida, was a self-described organizer. Rehl was president of a chapter in Philadelphia. Pezzola was a member from Rochester, New York.Attorneys for Nordean and Rehl gave closing arguments on Monday.Tarrio is accused of orchestrating the attack from afar. Police arrested him two days before the riot on charges that he burned a church banner during an earlier march. A judge ordered him to leave Washington after his arrest.Defense attorneys have argued that there is no evidence of a conspiracy or a plan for the Proud Boys to attack the Capitol. Tarrio “had no plan, no objective and no understanding of an objective”, his attorney said.Pezzola testified he never spoke to any of his co-defendants before they sat in the same courtroom. The defense attorney Steven Metcalf said Pezzola never knew of any plan for January 6 or joined any conspiracy.“It’s not possible. It’s fairy dust. It doesn’t exist,” Metcalf said.Mulroe, the prosecutor, told jurors a conspiracy can be an unspoken and implicit “mutual understanding, reached with a wink and a nod”.The foundation of the government’s case is a cache of messages Proud Boys leaders and members privately exchanged in encrypted chats and publicly posted on social media before, during and after the deadly January 6 attack.Norm Pattis, one of Biggs’s attorneys, described the Capitol riot as an “aberration” and told jurors their verdict “means so much more than January 6 itself” because it will “speak to the future”.“Show the world with this verdict that the rule of law is alive and well in the United States,” he said.The justice department has secured seditious conspiracy convictions against the founder and members of another far-right group, the Oath Keepers. But this is the first major trial involving leaders of the Proud Boys, a neo-fascist group that remains a force in mainstream Republican circles. More