When I was a younger man, I thought of the Supreme Court as a kind of \u201cTemple of the Law\u201d.\u00a0\u00a0I saw the Justices as the \u201chigh priests\u201d of American jurisprudence, bringing their differing views of the Constitution to the table to have \u201clearned\u201d discussions about what our Law should be.\u00a0\u00a0They had carefully orchestrated private sessions, held around the table and strictly regulated by protocols developed over centuries.\u00a0\u00a0It was almost a religious experience, like the Christian Council of Nicaea.\u00a0\u00a0<\/p>\n\n\n\n
No staff, no prompts, no outside influence allowed. The most \u201cjunior\u201d Justice did the housekeeping \u201cchores\u201d, getting the water and closing the doors. And around this exalted table, from the Chief to the most Senior then down the list, they gave their views, and listened to each other.<\/p>\n\n\n\n
And after that first conference, the Chief would call for a preliminary vote. If he was in the majority, he assigned a Justice to write an opinion (or took it himself). If he wasn\u2019t, then the most Senior Justice in the majority would make that decision. It was ethereal, almost like the angels determining the pathways of heaven. <\/p>\n\n\n\n
As I grew wiser, I realized that many of these Justices held fierce views, and had other influences in their lives.\u00a0\u00a0Some were former Governors or Senators, one even a President.\u00a0\u00a0Of course they brought a keen sense of politics to the table, a better understanding of the results of their actions in the \u201creal\u201d world, down from the \u201cMt. Olympus\u201d on Capitol Hill.\u00a0\u00a0<\/p>\n\n\n\n
The \u201cmost activist\u201d Court of the 1950\u2019s and 60\u2019s, was led by a former Republican Governor of California, Earl Warren.\u00a0\u00a0Among the members of his Court:\u00a0\u00a0\u00a0Senator Hugo Black, Chairman of the Securities and Exchange Commission William O. Douglas, Harvard Professor and founder of the ACLU Felix Frankfurter, Attorney General Tom Clark and former NFL Player Byron “Whizzer” White.<\/p>\n\n\n\n
Even into the 1990\u2019s and early 2000’s, there was still the view of the Court as a battlefield of intellectual prowess and conviction.\u00a0\u00a0There was the \u201cgreat conservative\u201d Antonin Scalia, versus the \u201cgreat liberal\u201d Ruth Bader Ginsburg.\u00a0They had battles of will and intellect, tempered by a best friendship outside of the building.\u00a0\u00a0\u00a0They brought their \u201cbest\u201d to the Court, and fought fiercely for their view of America.<\/p>\n\n\n\n
Sure there were \u201chiccups\u201d. Justice Abe Fortas, nominated for \u201cChief\u201d by President Johnson in 1968, was taking $20,000 as an annual retainer from Wall Street corporate raider and convicted felon Louis Wolfson.\u00a0\u00a0\u00a0While that wasn\u2019t illegal, it definitely was unethical.\u00a0\u00a0Ultimately Fortas resigned under pressure from the Republican Nixon administration, who were anxious to get a liberal off the bench for a more conservative voice.\u00a0\u00a0<\/p>\n\n\n\n
$20,000 a year: that\u2019s \u201cchump change\u201d compared to today\u2019s Court. I\u2019ll get to that soon enough.<\/p>\n\n\n\n
The \u201choliness\u201d seemed to fade as the appointment process became uglier.\u00a0\u00a0Nixon had his troubles replacing Fortas (paybacks \u2013 for sure).\u00a0\u00a0Then there was the infamous late 1980\u2019s Reagan appointment of Robert Bork, a devout conservative, that became an ideological battleground in the US Senate.\u00a0\u00a0Led by Senator Ted Kennedy and a younger Joe Biden, the Democrat majority refused Bork\u2019s nomination.\u00a0\u00a0It was \u201chardball\u201d politics, without the fa\u00e7ade of politeness.\u00a0\u00a0It was soon followed by the Bush Administration\u2019s nomination of Clarence Thomas, accused of sexual impropriety.\u00a0\u00a0Bork failed to win approval, but the Biden-led committee ultimately approved Thomas for the Court.\u00a0\u00a0From then on, politics were raw and open in Court appointments.<\/p>\n\n\n\n
The big change in the US Supreme Court is that now that the law seems to comes second, ideology comes first.\u00a0\u00a0An avowed political group, the Federalist Society, wraps the law around to advocate for their own political beliefs.\u00a0\u00a0The concept of precedent, one of the \u201choliest of holy\u201d precepts of American Law, is tossed aside to achieve seemingly political ends.\u00a0\u00a0(To my remaining conservative friends who read these essays, I freely admit that precedent definitely favored MY views, not the Federalist Society’s).\u00a0<\/p>\n\n\n\n
The nomination hearings for some recent Justices of either \u201cside\u201d were tame, like Sonja Sotomayor, Neil Gorsuch, and Katanji Brown-Jackson.\u00a0\u00a0But there also was the contentious hearing for Amy Conan Barrett, and the accusations of sexual misconduct, tears and beers about Brett Kavanaugh.<\/p>\n\n\n\n
But we got a revealing look at the pockets under the robe with recent reporting on the financial actions of Justice Clarence Thomas. He took millions of dollars in free vacations from conservative \u201cfriend\u201d Harlan Crow, and even sold his mother\u2019s house to him (his mother is still living there). Oh, and Crow also provided the funds to start Ginny Thomas\u2019s conservative political action committee (the Justice\u2019s wife). If $20,000 a year was enough to force Abe Fortas out, then Thomas is definitely far beyond that (inflation included).<\/p>\n\n\n\n
Don\u2019t expect him to resign.\u00a0\u00a0Besides Thomas\u2019s obvious hubris about ethical concerns, there is a \u201cworld\u201d of conservative pressure to keep their most Senior and devout member on the Court.\u00a0\u00a0That\u2019s especially since a Biden replacement would make Chief Justice Roberts the \u201cswing\u201d vote again.\u00a0\u00a0Robert\u2019s is as conservative as they come, but more concerned with precedent and the moral standing of the Court, than the current majority of Thomas, Alito, Gorsuch, Barrett and Kavanaugh.<\/p>\n\n\n\n
It’s kind of ironic.\u00a0\u00a089 year-old Senator Diane Feinstein of California is recovering from shingles.\u00a0\u00a0She\u2019s missed almost two months of attendance in the Senate, and fifty-four Senate votes (though she is working from home).\u00a0\u00a0Some of her fellow Democrats from California are calling for her resignation.\u00a0\u00a0Her absence is holding up Democratic nominees to lower Federal Court benches.\u00a0\u00a0While Feinstein isn\u2019t resigning, she voluntarily allowed her seat on the Judicial Committee to be temporarily reassigned to another Democrat.\u00a0\u00a0If Senate procedures won\u2019t allow that, and she isn\u2019t ready to return, don\u2019t be surprised to hear Democratic calls for her resignation increase.<\/p>\n\n\n\n
But Thomas, with daily reports about even more ethical violations, stands firm.\u00a0\u00a0And so does his party.\u00a0\u00a0Personal ethics aren\u2019t an issue to today\u2019s Republican Party leadership.\u00a0\u00a0Anything is fair game, as long as Thomas continues to push their agenda.\u00a0\u00a0The sanctity of the \u201cTemple of the Law\u201d ain\u2019t what it used to be.\u00a0\u00a0One of the \u201chigh priests\u201d is living \u201chigh on the hog\u201d.\u00a0<\/p>\n","protected":false},"excerpt":{"rendered":"