By Will Bellaimey:
There have been a lot of revelations lately about the questionable ethical decisions by multiple justices of the Supreme Court—in particularly Justice Clarence Thomas—in terms of receiving gifts and reporting or disclosing them as justices.
In general, judges in this country are bound by ethical rules. Some of those require you to disclose possible conflicts of interest, and others require you to recuse yourself from decisions where you could be either actually corrupt or give the appearance of corruption because of some connection to the issue.
However, the Supreme Court has no written ethical rules that you have to follow that are binding. There are some gift-disclosure expectations, but in terms of being recused from a case, there's no requirement for that. It's basically been left up to the justices to decide for themselves whether they should recuse.
In the case of Justice Thomas, his wife is a very vocal activist on the right who was one of the people speaking up on behalf of the idea that the 2020 election was stolen and was even in support of some of the January 6th actions as a result of that. When cases came in front of the court that involved those events, there were many who thought Thomas should recuse himself, but he did not. And because there are no rules regarding that, he was not required to do so. Since then, we found out from reporting by ProPublica that he's also been receiving pretty major gifts from a Republican donor named Harlan Crowe, who's a billionaire and has taken Thomas and his wife on multi-hundred-thousand dollar vacations and also paid for Thomas's grandnephew., who he was in custody of, to go to a fancy private school.
These are all the kinds of things that if you found out were happening in Congress and they were not reported correctly could lead to pretty serious ethical investigations. But because there's no requirement for Supreme Court justices to be investigated in these sorts of situations, it's really just a matter of embarrassment for the court.
There are other embarrassing revelations involving Justice Roberts and Justice Gorsuch, although I would say those are probably less obviously unethical than these kinds of situations. And to be honest, I don't think anything major is going to change. It would take legislation to change the ethical rules surrounding the Supreme Court—that's up to Congress (and as I talked about in my debt ceiling article, good luck getting Kevin McCarthy and Joe Biden on the same page about anything).
So it can be dismaying to see how much chaos is happening within our system and feel that the system is fundamentally broken. That has driven both the Trump movement within the Republican Party and the Bernie Sanders movement within the Democratic Party—both of which are populist movements that are driven by the feeling that elites in Washington can't be trusted.
This is certainly not the first time in American history that that's been the case. Andrew Jackson's whole presidency was driven by a similar feeling that the Washington elites had gotten completely out of touch with the real America. That led to what was called Jacksonian democracy, its own kind of reboot of the American system that involved the first universal suffrage—at least for white men in the country. I think there's a potential, at least for our country today, to face a similar change through electing someone similar. You could argue that Donald Trump, in his way, was a real transformative figure in at least one of the parties.
However, if you're talking about the kind of structural change it would take to fix some of these bigger problems, it would probably require either major legislation or a new constitutional convention—which I always teach students as the big red button that you shouldn't push in American democracy. It is a possibility, if you could get enough of the state legislatures to call for a constitutional convention to propose amendments—which would then have to be ratified by the states.
Given the division in our country right now, that would be another opportunity for each side to try to grab power—though I don't think either side would have an easy time getting the three quarters of the state legislatures vote necessary to ratify those amendments. I actually think there's a decent chance that enough states could call for it, but then we'd be in the situation that Chile was in over the last four years, where a kind of populist backlash against the elites has lead to an attempt to really fix the democracy and change the constitution. Then it comes up against the fact that you just are divided in enough society that you can't get it ratified; and that's what happened in that country. I think that's what would happen in this country too.
So if you're looking for change, and if you're looking for the opportunity to remake the fundamental way that democracy works, I think right now your best hope is at the state level. It's actually happening in many states, for better and for worse, if you look at the difference between the kinds of things that Ron DeSantis is able to do in Florida and the kind of things that Gavin Newsom is able to do in California, or even on a more local level.
On the local level, San Francisco is trying to pass a reparations bill. Good luck trying to do that anywhere in Florida. So, part of what happens when our entire federal government system is racked by division and dysfunction is that we just revert down to lower levels of government, and I don't know that that's necessarily a bad thing.
It's certainly a bad thing that there are tons of women across the country right now who are suddenly at the mercy of their local state legislatures (whether they can get an abortion or not), but I think on some of these other issues, in terms of the possibility of change, we shouldn't look at the fact that Congress can't pass anything and say that nothing can get done—we just have to work at a smaller scale.
Will Bellaimey teaches U.S. Government and Politics at Flintridge Prep School outside Los Angeles where he is also the director of the Los Angeles Museum of Geography, which is staffed entirely by seventh graders. His podcast, All the Presidents, Man, is available here.