US Supreme Court Justices get lavish gifts; Raise bar for bribery prosecutions
ohiocapitaljournal.com
ohiocapitaljournal.com
From the Daily Beast:
>Clarence Thomas’ mom is definitely still living in a house bought by a Texas billionaire who bankrolled luxury trips for her Supreme Court justice son, according to a report. On Thursday, ProPublica reported that Republican megadonor Harlan Crow bought two vacant lots and a single-story home in Savannah, Georgia, from Thomas in 2014 and that experts believe Thomas violated a federal law by failing to disclose the sale. Crow also then reportedly spent tens of thousands of dollars on renovations at the home occupied by Leola Williams, Thomas’ mother, but ProPublica couldn’t definitively confirm that Williams was still living in the property after 2020. Later Thursday, Slate reported unequivocally that Williams remains in the house to this day. The outlet said one of its reporters interviewed Williams at the property “two weeks ago” for an upcoming podcast.
This is acceptable conduct? We should just accept this level of venality? Boggles my mind. Where are all the patriots?
[1]: https://www.thedailybeast.com/clarence-thomas-mom-definitely...
High brow political corruption everywhere is more about those small, marginal adjustments, which also lead to less obvious quid pro quo. It's not that your buddy renovated your house, so you pick his company in a government bid worth a few hundred million: He becomes your buddy first, and gives you smaller gifts, and when you are adequately aligned, bigger gifts keep getting exchanged.
This is what makes the actual corruption always seem very cheap: It was never that huge a push, and the long term social component is always far more important than just the money.
The only way that any more than a couple Republicans vote to remove Thomas or Gorsuch is if they see an opportunity to replace an older conservative justice with a younger conservative justice.
Anyone who knows anything about sexual assault would dismiss this as a serious threat to the credibility of the accusation. There was no reason for her to publicly make the accusation earlier. There is documentation of her privately making the accusation years before Kavanaugh's nomination.
>Veteran watchers of the court know that those sort of accusations aren't a serious impediment to confirmation however. Who can forget Clarence Thomas's Coke cans?
The hope was that society progressed in those nearly 30 years between the two nominations.
Society yes, Congress no. Many of the same people are still in there.
- There were no corroborating witnesses
- Kavanaugh's own personal calendar from the year in question has no entries for the party at which the assault allegedly happened
No one's memory is perfect after nearly 40 years.
>- There were no corroborating witnesses
What witnesses do you expect? The direct witnesses would have been implicating themselves. There were witnesses and evidence that showed she talked about these accusations years before Kavanaugh's nomination.
>- Kavanaugh's own personal calendar from the year in question has no entries for the party at which the assault allegedly happened
A teenage not documenting their illicit behavior is a rather weak argument that they never participated in said illicit behavior.
Indeed! Which is one of the reasons why we should question her accusation! How can we be sure she even accurately remembers who committed the assault? It might very well have been that she was assaulted, but by someone else. It could also be that it was Kavanaugh, but the interaction played out differently that she remembers.
> What witnesses do you expect? The direct witnesses would have been implicating themselves. There were witnesses and evidence that showed she talked about these accusations years before Kavanaugh's nomination.
She named witnesses to the actual event (or at least the party at which it took place) and none of them corroborated her story. They wouldn't have even been implicating themselves in the assault.
As I recall, she did talk about the incident years after it happened (long enough for details to have become muddled) but as I recall she didn't name Kavanaugh until after his nomination.
> A teenage not documenting their illicit behavior is a rather weak argument that they never participated in said illicit behavior.
Kavanaugh kept a fairly detailed social calendar. In conjunction with the fact that none of the other supposed attendees to this party remembers it happening, significantly undermines credibility of the accusation.
Leverage, pure and simple. He is absolutely beholden to them because they can ruin his career and life by turning on him at any wrong move by...just...telling the truth.
Just the unhinged rants about beer and clinton alone were shocking.
And I can't "prove" this, but he straight up lied about those definitions like "devil's triangle", "boofing", etc. Those terms are extremely common, have well defined definitions and seemed like they were used in those contexts (parties). No doubt in my mind he lied about that. If he lies about simple stuff like that then God knows how much worse it can get.
"Well if anyone asks what the hell I'm doing on the ethics committee we'll just tell them I like chasing women and drinking whisky and the Speaker felt we were underrepresented."
In other words, even people who like to party deserve representation in government.
And as for lying about "devil's triangle", apparently several classmates from both Georgetown Prep and Boston College have confirmed his definition:
https://www.cnn.com/2018/10/04/politics/georgetown-prep-devi...
I am not going to debate this. If there's one thing I've learned, it's that anything can be debated, and with so many moving parts here, it's very easy to muddy the waters.
As an example, you linked an article where you chose to highlight friends of kavanaugh, impartial members, backing his claims and ignoring that others such as his roomate disagreed with those claims.
Of course you're free to believe whatever you want, but if you aren't willing to discuss it, why did you even bring it up here?
The US system of governance at this point is such a failure for real democratic rule. It's devolved into a two-party system, and for some reason we grant whichever party happens to be in power the ability to appoint party apparatchiks to vacancies on the Supreme Court. These people then rule until death, when they are replaced in the same manner.
This being the framework, there is never any structural incentive to do anything but convince voters that your opponent is a monster, so you can retain power. Good governance is not rewarded, bad behavior is not punished - we may only rely on the questionable morality of the elected officials to "do the right thing," since they cannot be held accountable.
https://www.wsj.com/podcasts/opinion-potomac-watch/the-billi...
Sure. I think ProPublica is reporting an angle here that can't be proven that Harlan Crow is attempting influence peddling or trying to put cash in the pocket of Clarence Thomas illegally. This doesn't look like a corruption case. The situation is somewhat reasonable and Thomas might have profited by 1/3 of the ~$130,000 house that he inherited which is not really a big deal.
It should have been reported, yes, absolutely. But I think this is fairly mundane.
I also think it's worth pointing out that Justice Ginsburg received a $1M award from Russian oligarchs[1][2]. She also received a trip to Israel[3] from an Israeli billionaire. I suppose if I were a ProPublica journalist I would say she was lavished with a private arrangement in Israel by a foreign billionaire. These are probably also mundane, I don't think she was corrupted by foreign influences.
It's a good question of whether all of this is appropriate, I don't know. But ProPublica is not exactly an unbiased reporter in my opinion. Being donor funded probably makes one even more susceptible to political bias than corporate media imo.
[1]: https://www.genesisprize.org/honorees/lifetime-achievement-a...
[2]: https://en.wikipedia.org/wiki/Genesis_Prize
[3]: https://www.nytimes.com/2023/04/14/opinion/editorials/claren...
A regular govt worker receiving a $25 gift card has to report it or could be fired, but once you get to Supreme Court, you can do whatever you want.
And with 100+ years of precedence (much of which is contradictory or doesn't mesh well with modern morals or the current condition of the US (high technology, fewer physical workers, globalization, etc)), they have a lot of potential justifications at their fingertips.
Historically, federal judges have a 50% conviction rate following impeachment. The proximal causes of such a low impeachment rate, and whether they sufficiently address the current behavior of our supreme court justices is obviously up for debate.
1. https://www.fjc.gov/history/timeline/samuel-chase-impeached
Of course, you'd be hard pressed to get 66% of America to agree on anything.
“66% of America” isn’t actually relevant (that is neither necessary nor necessarily sufficient to ratify, or even submit for ratification, a Constitutional Amendment).
You're not wrong. That said, it's the SC's job to interpret the wording and the intent of the constitution, including all its amendments. It's how one group of SC justices created the Roe vs. Wade decision, and another group of SC justices overturned it, both using the same constitution and precedent.
They don't even have to be reasonable justifications, judging by the justifications they've used for other rulings recently.
Citation?
There are examples of various judges accepting trips and gifts, but some of them REALLY stand out in the number and value.
I agree that it appears that none of them have really rocked the boat with external pressure, but the court has been a very insular institution. We don't know how much they've talked about it amongst themselves.
Their is also a quote from the late RBG comparing efforts to stop this to some sort of stalinism.
Either way, what is absolutely important is that any enforcement is absolute and not selective / at the discretion of a prosecutor. There is no unbiased person when it comes to potentially shifting the balance of power of the SCOTUS. We can't only be shining a spotlight on justices from one party.
I remember when the standard was that judges should avoid the appearance of corruption, not just avoid the reality of it.
For the regular government worker, does it matter who gives you that card? In the private sector, it's an issue if the card comes from a vendor, customer, etc, but if you just get a gift from some unaffiliated party there no need to report it to your employer.
But Federal level elected officials get a pass. And apparently appointed (supreme) court judges, too.
A supreme court that is blatantly partisan is not really a proper check nor balance. The system must be set up in a way that encourages less partisan judges, though I don't know how you could achieve that in the US the way the situation is now.
At least in theory.
Most members of congress could as well have life terms, as long as they don't go against those who put them in power.
Impeachment was just tried to remove former President Trump twice for serious crimes (we are not talking about lying about a blowjob here), and it failed. Twice.
In the first instance, the House prosecutors proved that Trump used extortion to try to solicit a bribe from a foreign ally that would help him politically. In his defense, Trump's lawyers literally argued that he was right to do so, because he believed it would help his campaign, and him winning his campaign was the best thing for America. Ipso facto, he can't be impeached for trying to help America. Notably, the conduct was not denied. The senate sided with Trump in that argument, so he was acquitted. Impeachment cannot be used to reign in executives who extort and/or solicit bribes, that has been shown.
Then there was the second impeachment. If ever there was a case to impeach a president, it would be one who incited an insurrection. And yet, Senate Republicans slow walked the impeachment trial, then claimed as it was held they couldn't impeach Trump because they had taken to long to start the trial. I mean, when else are you supposed to impeach a president who stages a coup and incites violence at the end of his term? Impeachment cannot be used to reign in insurrectionist executives, that has been shown.
So what good is impeachment? If it is toothless in the face of blatant proven corruption (they didn't even try to deny it) and abject lawlessness, then it might as well not even be in the Constitution in the first place. It's moot.
Some states have binding resolution. This is where the anyone can go door to door asking for signatures. With enough signatures the resolution is placed on the ballot and the people can vote on. Passage forces representatives to change laws and requirements based on the wording of the resolution. Example would be Colorado requiring legalization of cannabis while overriding the elected politician that kept voting against the legislatively pushed legalization.
Most states have non-binding resolution. This means you can go door to door and get signatures to place on the ballots for the people to vote on. The outcome of the vote has no power and is just means to perform a mass survey.
Votes that pass binding resolutions are more equivocal to, "Representatives, you must do this". While non-binding resolutions are equivocal to, "Representatives, please please pretty please can you act upon our request, we beg of you".
I would say in order to actually have checks and balance, the people must be the fourth section of government that can enact change. Ability to vote on a single issue instead of only being able to vote on a single person.
In my opinion, having binding resolution reduces the need for protests and violence to enact change. And require politicians to work together versus being extremely polarized.
But I think recent history has taught me that voting matters, and elections matter. People are getting what they voted for across the country, and I don't think there has been a point in recent history where that has been starker. A state like Colorado is often called "purple" because many issues are split down the middle there. So yeah, in some instances there's going to be a mismatch between the electorate and politicians. But at the same time, there's a big difference between e.g. California and Florida regarding how someone like me (LGBTQ) is perceived by the government. It's not direct citizen action holding the lions at bay in my state, it's the collective action of voting for representatives who don't pass legislation targeting us.
“In good behavior”, with accountability to Congress.
De facto for life with no accountability is, like many problems in the US system of government, largely a side effect of the combination of defective electoral system and the resulting norm of near-balanced partisan duopoly, which in the case of the judiciary combines with the supermajority requirement for conviction on impeachment charges to achieve lack of accountability; the same is also true of the executive, though finite terms, electoral accountability, and in principal (and currently being tested in practice) post-term legal accountability are arguably mitigations there.
it would take a lot of collective effort to make it happen, though.
Yes, we do. However, regardless of what the system intended, that's not what we have anyway.
But this is a political problem. What non-political solutions are even possible?
https://en.wikipedia.org/wiki/Supreme_Court_of_Justice_of_th...
Their ability to interpret rights and issues is checked by Congress actually passing specific legislation on those issues, or even better constitutional amendments.
They are also directly accountable in terms of confirmation and impeachment.
The seeming rise in power of the Supreme Court is in some ways a long tail symptom of the continuing lack of efficacy of Congress to fulfill their duties as lawmakers and proportional representatives of the citizens they serve.
Maybe there's a level of wrongdoing where their own voters would demand it, but I think it's generally more likely for voters to demand hard-nosed partisanship.
Not that these particular allegations really get anywhere near the level where this would be a question.
You'll have to talk to your representatives in congress about this, or vote for candidates who want to do something about it. Congress can impose laws, impeach current justices, and/or add new justices (who hopefully aren't as corrupt) to dilute the influence of obviously corrupt justices.
The majority of long time members of congress probably will be hesitant to do anything because they are probably guilty of similar things themselves though - see recent news stories about insider trading. With this in mind, pay attention to your primary elections!
- While federal judges have life appointments, nothing in the Constitution prevents a "term limit" on a particular judge/court pairing. IE, we could move Supremes to a lower federal court after 15 years without amending the Constitution.
- We could demand POTUS and Congress stop appointing assholes and crooks to the bench. But, that's about as likely as the first bullet.
Are you sure? The constitution says:
> The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour…
That seems rather unambiguous to me.
Of course, SCOTUS would end up being the ultimate arbiter here, so quite likely a non-starter for that reason alone.
daily reminder that we’re all aware of the ways each side is different, and that its valid to be more bothered by the ways in which they’re the same
A Justice doesn't have to be a Justice. They could stay on a lower court, or in corporate law, or wherever they were prior to being elevated to the bench. They could also retire and take a corporate job, just as many members of Congress and the Executive do (which is likely a different flavor of corruption, but another discussion). Point being, there is no need for a Justice to be corrupt for financial reason - $300k is objectively a lot of money in 2023 and they can always quit and go elsewhere.
We don't make the same argument for the President or Congress. We expect them to happily take their reasonable but not lavish salary (and then go do a book tour or whatever afterwards).
We allow them (congress) to trade stocks with knowledge from their privileged positions that no one else has. A lot of them walk out millionaires, before any book deals or speaking fees.
You mean they're supposed to report the trades within 45 days. Not all do, and not all have gotten in trouble for violating the STOCK Act.
https://www.npr.org/2021/09/22/1039287987/outside-ethics-gro...
With $174,000 base pay, decent benefits, and frequently leaving with several decades of service, it’s not that hard to leave with a $1 million+ net worth without corruption.
(And that’s even before considering how many members enter as millionaires.)
To be clear, I’m not saying that there isn’t abuse of privilege and corruption in Congress, but “a lot of them walk out as millionaires” is…well, what you’d expect without any corruption at all.
> (And that’s even before considering how many members enter as millionaires.)
I wasn't including them as it seems obvious millionaire in/millionaire out, but could have been more clear.
To the extent that $174k/year individual income isn’t “that much” in 2023, neither is $1 million net worth. (They are both close to 95th percentile.)
It's not, because every nominee knows those facts going in. If someone wants to cash in for big money, they shouldn't volunteer for this job.
After that it's up to the person in question...
Could not disagree more.
In the USSR and China you do have democracy, but it’s voting for party lists of approved candidates. These people sit on committees that vote for the next rung up, and so in until you get to the top. The problem is too much democracy. But because it’s all run by committees in practice it’s all stitched up in back room deals with the leaders at the top directing the lower levels.
In the US it’s a different structure but the effect is similar. You don’t just have elected politicians, but ejected judges, elected sheriffs, prosecutors, electoral officials, even elected librarians. Plus direct voting on initiatives. Ordinary voters can’t possibly keep up with who is who, what their individual records are or what platforms all these people are standing on. so they just go with the party approved candidate. Parties also run campaigns for candidates, so in practice candidates owe their actual chance of getting elected not to the voters, but to the patronage of party machines.
This goes all the way to the Supreme Court. Liberal justices are the darlings of Democrats and are feted and celebrated. Conservative justices are the darlings of Republicans.
The problem is severe disconnection between voters and the people they are voting for.
Only someone who was confident in his faction's ability to control Congress forever would hamstring the Supreme Court. Corruption might just be the price (whether or not it is too high) that one pays to make certain that there are some speed bumps in the way of the House and Senate if they ever got too far out of whack.
Codes of conduct don’t constrain the Court, they constrain individual judges and justices. That’s the advantage of putting the enforcement within the judiciary, versus the executive (prosecution) or legislature (impeachment).
I don't quite understand what you're saying here. Especially in light that it takes a supermajority of the Senate to remove someone from the court, not just control of the Senate.
> that one pays to make certain that there are some speed bumps in the way of the House and Senate if they ever got too far out of whack.
Direct election of members of congress is the better speedbump.
In Article III Section 1 of the constitution says this about federal judges: "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour." Interpreting the constitution so that my bad behavior is not bad behavior any more looks to me like it oversteps the bounds, and since laws are only proposed and enacted by congress I'd say it's pretty clear that congress has the right and duty to define bad behavior.
Impeach them.
The trouble with this is that some people want immediate results for their political whims without putting any work into it, without spending any political capital over it.
The tactics that have been used so far really do smack of limiting the power of the courts. This is understandable, in that the people wanting to do that see a Supreme Court filled with justices they do not agree with politically. If those people were to succeed, they will discover in 10 or 15 years that they did not have the eternal control of Congress that they thought they did, but they will have hamstrung the other branch of government that might have put a stop to the worst of the nonsense.
And that holds true no matter which party you think I'm talking about. It's "filibusters are inconvenient to me right now, let's get rid of them forever!" all over again.
In any case, charging judges who engage in criminal behavior with crimes is normal business of the Republic, as is writing laws defining bribery, and the penalties. Redefining a criminal statute so that one can engage in previously illegal behavior stinks and probably does warrant impeachment.
https://en.wikipedia.org/wiki/List_of_impeachment_investigat...
If this is bribery, just do it. Quit whining about it. Instead, they call an entirely different justice to testify, as if there's anything to say. Is that a fishing expedition, an attempt to embarrass the institution on public tv, or both?
No reform is needed here. All the tools you need are at your disposal. Go for it.
When the Democrats signal that they're never willing to negotiate, of course the other side will take the same tact... "Why would we want to anyway!?!" all sour grapes.
Back when Trump was still in office, they might have had a successful impeachment with a little negotiation. The Democrats had something to offer (the presidency), and the GOP didn't much care for him (they just didn't want to end up the losers if they helped the Dems). Promise to impeach Pence first, put in someone the GOP likes as VP. Then impeach Trump, their favorite candidate moves into the White House. There was even enough leverage to get Trump to agree to the VP replacement (both carrot and stick). Everyone (including the American people) could have won.
Wasted opportunities because it's more important to beat the other team than for everyone to win. Even worse results 20 years down the line because you're all too busy wanting to tear apart every check and balance for some temporary advantage. Really are getting the government you all deserve.
By this I take it that you're not American? No offense, but your analysis while logical from an ends justify the means perspective, is just a fantasy. It's not a realistic, as it ignores the entire cult dynamic of the MAGA movement, which is well-documented at this point. Republican inaction on the worst aspects of Trumpism and the MAGA movement are not explained by "they just didn't want to end up the losers if they helped the Dems". It doesn't explain the retconning of the January 6th insurrection from Republicans at all levels of government, and the media. It doesn't explain the lunacy of the 118th Congress.
Sorry, the idea that, but for Democrats, Republicans would have reigned in the worst and most powerful within their own ranks is simply preposterous. Republicans are responsible for their own party, plain and simple.
Did they? I thought the issue is the Chief Justice hasn’t bothered to investigate. Instead, it’s the Clarence Thomas show.
Not quite. It’s used when someone is unchecked. For example, a dictator saying they looked into their alleged wrongdoing and found nothing wrong. This isn’t that. It’s the people who have the power to check Thomas, i.e. the Court, the Congress and the DoJ, choosing to do nothing.
Part of that capability includes that they not be swayed by whatever hot topic of the moment, including this. In general, I agree with the line, "if a Supreme Court justice can be bought for so little, the nation is in deeper trouble than I had imagined".
Not to say that no justice has ever done anything unquestionable. But I find that the muckraking (like the Daily Beast article quoted by another comment) only seemed to garner interest in being investigated because of the number of controversial opinions lately.[0] And people on the left were happy with the way things were as long as the Court ruled in their favor. Which is a weak position to find yourself having taken.
Any time an argument about the structure of the Court comes up, I ask, did you feel that way when it was ruling in favor of you? If not, then what kind of institution are you asking to be created? Beware.
If you thought the Court needed to be packed, would you adopt the same position if it were to be packed with conservatives? If you call for the removal of Clarence Thomas, would you be happy to have seen RBG removed for some similar questionable travel she engaged in? You want term limits on the current justices -- would you have been in favor of that for the justice that was giving you "yes" votes on cases? Or is it just because the Court's rulings aren't going your way lately?
We have far too much in society today where people want to change the rules just because the last decision didn't go their way. Democracy, I think, is actually about losing gracefully and without having a revolution, not that you always get your way.
The Court is deciding topics that are intrinsically hard to make "objectively fair" decisions about. This Court chooses to return us to previous positions that were also defensible (or saying that interpretations were incorrect) and according to certain legal principles, re-adhering to what the Constitution says to do. The Court rules on things that are intrinsically open for interpretation.
And it is a reflection of our other parts of government being dysfunctional that we for example, cannot amend the Constitution if we think that standards need to change. No court will save us on an issue where 50% of people disagree on it, no matter how strongly you may feel that your side is right. The Court is the last place that you should try to make change happen.
I am not in favor of suddenly finding / proposing all sorts of new rules just because a ruling didn't go your way.
[0] See this story for why you should read more of the detail if you wish to have a position that's more informed than "this is so corrupt": https://www.wsj.com/podcasts/opinion-potomac-watch/the-billi...
Earlier in history a Court at odds with the other branches basically "blinked" when confronted with the threat of packing, but it's hard to see that happening now. It's obvious that Roberts is concerned with the image of the institution to the degree that it's affected the outcomes of cases before that were likely to be seen as overtly partisan, but there's now a conservative majority even with his exclusion.
Some of the court's outsized power and importance has happened because of Congress's unwillingness and/or inability to act, leading both parties to look to the court for "wins." I think fixing that (itself a tall order) could turn down the temperature a little, but the Supreme Court itself holds a lot of control over whether that can even work, as they're effectively the arbiter of the scope of their own power.
I don't believe Thomas was bought by bribery. I don't think any reasonable observer does. Rather, I think that he was friends with a very wealthy person, who appreciates that Thomas is ideologically inclined to give him what he wants.
Nor is that illegal. The illegal part is failing to disclose it. Nobody can say why he failed to disclose it. He has no reason to be embarrassed by it. It's widely interpreted as contempt for the law -- an uncomfortable thing to believe about the highest court in the land.
I know that a lot of lawyers (of all ideologies) have a lot of respect for the work of the Supreme Court. As a non-lawyer, my lack of respect should mean less than theirs. But when a decision comes down to ideology, they can be relied on to vote with their decades-old beliefs, and the entire charade of presenting a case seems unnecessary. The decision could have been written without pretending that they were actually deciding anything.
As you day, democracy is about losing gracefully. But as of now, I'm practically guaranteed to lose for the rest of my life any time it comes down to an ideological issue. That's not corruption; it's the fact that there are at least five justices who I don't believe will even consider it. The fact that one of them doesn't consider a law relevant is an indicator that something is badly aligned, upsetting the balance under which I'm expected to be a good loser.
One of the respect-worthy things about Scalia (even Thomas) is that they believe(d) that what the Constitution says, should be followed. One of their fundamental differences with, say, the more liberal justices, is that you should not read new/updated rights into a document that says what it says. If on the other hand you say that justices should adapt to what the current interpretation of a document implies, then maybe it goes your way, but someone interpreting modern values differently might equally conflict with what you want.
In that sense their position is clear and stable. They don't agree that the rights you're claiming are found in the Constitution.
How then, do you change that or turn it to your advantage? You make laws and amend the Constitution to change the ground rules of society over time. And justices that take the above approach will, if they are reputable, continue to follow their adherence to what the Constitution (updated) says.
Now, as I said above, our system seems to be quite dysfunctional right now in that a lot of issues cannot be decided by society given our political reality right now. But having a court decide an issue when 50% of people disagree will not gain it any credibility, or resolve it for society.
As a mode of rationalization of why the Constitution should be read in a way which supports their ideologically preferences, yes. As anything more deeply meaningful than that; some evidence in Scalia’s case, less in Thomas’s.
> One of their fundamental differences with, say, the more liberal justices, is that you should not read new/updated rights into a document that says what it says.
That’s not actually a difference between them and most of the more liberal justices; they actually legitimately disagree on original intent.
> If on the other hand you say that justices should adapt to what the current interpretation of a document implies, then maybe it goes your way, but someone interpreting modern values differently might equally conflict with what you want.
Believe it or not, its just as easy for people trying to interpret “what did the document mean in the eyes of the original writers” or “what would this text be seen as meaning in the original context it was written” (originalism/textualism) to come to differing conclusions than each other. The idea that either originalism or textualism produces stability is…well, I mean, its inconsistent with the decisions the Supreme Court has rendered with originalist or textualist rationales.
The Ninth Amendment makes it extremely clear that the list is not exhaustive. There is no originalist or textualist reading that can make "these are the only rights you have" valid.
But whether the SCOTUS judges should write wholesale changes to the scope of the Constitution or rights that drift away from the original intent? That certainly is a matter for debate and thinking about implications.
There is a mechanism for changing the Constitution, amendments. Why should certain topics, if they rise to the level of "should have been an amendment passed by the people", be imposed by the justices?
What if the Constitution envisions that judges should interpret ambiguities at the margin, and not create whole new rights that drift from the fundamental codebase, if you will?
And then on top of that, if some new right involves significant social questions and implications, why should 9 justices (legal professionals) be the ones to say what the answer is?
As you said, these are open for adjustment. But whether the rights you seek should be created by justices versus the democratic process I think I differ with. Or at least, I see the logic of the more conservative approach to.
The law is already a high bar. The process is designed to favor inaction. A dedicated minority can prevent law from passage -- and can do so solely for political reasons, regardless of their personal feelings or those of their constituents. To pass a law requires control of the House and the Senate (by a filibuster-proof margin) and the Presidency, at the same time. And an amendment is even higher than that.
The Supreme Court should be able to shortcut that by recognizing that the 9th Amendment explicitly forbids a reading of "you don't have this right if James Madison didn't give it to you". When they make that claim, the entire process is cast in doubt.
I would vastly rather see the Congress pass these rights. But when the Congress has cemented a Supreme Court dedicated to ensuring that you gain no rights, and is further willing to use any minority advantage to guarantee that it can't be done by law, then the Constitution really is a suicide pact.
The Constitution draws its concept of rights from philosophy surrounding natural rights. If you're not using the word in that context you're talking about something else.
If we actually lived in a true democracy, then, yes, I would agree. But we don't. The US naturally degrades to an undemocratic two-party system, and apportionment gives minority citizens outsized influence. Sometimes it even gives the minority citizens a majority in governance.
> You want term limits on the current justices -- would you have been in favor of that for the justice that was giving you "yes" votes on cases?
Yes, absolutely. The problem is that the lifetime appointments cut both ways. For example, RBG fucked up: instead of doing the smart thing, stepping down years earlier (when she already had plenty of health problems), she was selfish, stayed on the bench, and was replaced by someone with views that would likely disgust her.
A term limit would make things more fair, and would have justices entering and leaving the court at predictable intervals. Of course, term limits would likely require a constitutional amendment, so that will never happen.
I was a fan of another proposal I read a couple years ago: every presidential term gets some fixed number of SCOTUS appointments (say, one or two), and the size of the court varies term-by-term based on who is or isn't retiring. When a justice retires, they aren't replaced. Presidents just get their one or two guaranteed appointments every four years, and that's it.
Of course, you still have the issue of Senate consent; we could certainly have another situation where when the Senate is controlled by a party different from the president's, they stonewall and refuse to confirm. Fixing that would of course require another constitutional amendment, so that wouldn't work. But when appointments aren't "precious", it's probably less likely that would be an issue.
> I am not in favor of suddenly finding / proposing all sorts of new rules just because a ruling didn't go your way.
This isn't sudden; people have been talking about SCOTUS reform for many years. It's just that incidents like the current one bring it back into the spotlight.