\n<\/p>\n
\u201cThere is absolutely nothing that is difficult or complicated about this,\u201d\u00a0Senator\u00a0Sheldon Whitehouse<\/strong> tells me. Supreme Court justices should be held to the same ethical standard as any other judge\u2014and if they violate it, as\u00a0Clarence Thomas<\/strong> seems to have done, there should be a way to hold them to account. It\u2019s common sense stuff. And yet, in the immediate aftermath of new revelations about Thomas\u2019s lucrative friendship with conservative billionaire\u00a0Harlan Crow,<\/strong>\u00a0there seems to be little hope that the far-right justice will be held to any ethical standard at all.<\/p>\n Neither a divided Congress nor Chief Justice\u00a0John Roberts<\/strong>\u2014who has willingly refused to enact ethical rules\u2014are likely to be of any aid. Which leaves us with \u201cthe attorney general investigation that we asked the judicial conference to request,\u201d Whitehouse tells me, and the \u201ccontinued pressure on Roberts to set up a mechanism for the investigation and determination of ethics complaints within the Supreme Court. That\u2019s pretty much the suite of options we\u2019ve got.\u201d\u00a0<\/p>\n Still, a tireless champion of judicial reform, the Rhode Island senator is holding onto hope that Thomas\u2019s latest scandal could be the tipping point for reform\u2014even if Democrats have no clear recourse right now to hand down concrete consequences for Thomas\u2019s conduct. \u201cThis attention, and this pressure on the court, and the outrage that many federal judges feel, and the prospect of hearings and legislation being debated\u2014that to me is all a big step forward,\u201d Whitehouse says. \u201cI\u2019m very much glass half full about the progress that\u2019s been made in the last weeks, though I am glass half empty about where this ends. We don\u2019t know where this ends.\u201d\u00a0<\/p>\n His doubt is well-founded; despite years of facing calls for more accountability, the court has declined to establish formal ethics requirements. In 2011\u2014amid concerns about how Thomas\u2019s friendship with Crow and\u00a0Ginni Thomas<\/strong>\u2019s activism, as well as liberal\u00a0Elena Kagan<\/strong>\u2019s previous work for the Obama administration, might influence the justices\u2019 approach to cases involving the Affordable Care Act\u2014there was enough bipartisan interest for reform that the Senate Judiciary Committee brought then justices Antonin Scalia and\u00a0Stephen Breyer<\/strong> to Capitol Hill to\u00a0testify<\/a>. But Roberts refused to adopt the Judicial Conference of the US Codes of Conduct, writing in his\u00a0annual report that year<\/a> that the court had \u201cno reason to adopt the Code of Conduct as its definitive source of ethical guidance,\u201d and suggested that the \u201crigorous appointment and confirmation process\u201d justices are subjected to is a sufficient guard against misconduct.\u00a0<\/p>\n Of course, the flaws in that process would be on full display just five years later, when Scalia died and\u00a0Mitch McConnell<\/strong> blocked\u00a0Barack Obama<\/strong> from filling the seat, kicking off a Republican crusade to steer the high court far to the right under\u00a0Donald Trump<\/strong> by any means necessary. Republicans would go on to get their majority\u2014but not without further politicizing the institution they were taking over: \u201cRushing to confirm a Supreme Court nominee weeks before a presidential election has never been done before in the history of our nation and it will only fan the flames of division,\u201d conservative Democrat\u00a0Joe Manchin<\/strong>\u00a0said<\/a> in the fall of 2020, as Trump, McConnell, and the Republicans fast-tracked\u00a0Amy Coney Barrett<\/strong>\u2019s confirmation to the bench following the death of Ruth Bader Ginsburg.\u00a0<\/p>\n Since then, the Republican Party has come to rely on the court\u2019s six conservatives to enact through judicial fiat any aspect of their agenda that they can\u2019t advance through legislation. The most outrageous was its\u00a02022\u00a0Dobbs<\/em> decision<\/a>, which trampled over five decades of precedent and in some cases went against assurances justices made during their oh-so-sacred-and-rigorous confirmation processes that they regarded\u00a0Roe<\/em> as settled law. That decision\u00a0and other activist rulings from the court\u2019s far-right wing demonstrated a complete disregard for judicial integrity and the longstanding rights of Americans. But the conservatives\u2019 conduct\u2014which included\u00a0Samuel Alito,<\/strong> the author of the Dobbs<\/em> decision,\u00a0openly mocking critics<\/a>\u2014made plain exactly what the right-wing justices thought of their responsibility to the public: that they don\u2019t really have any.\u00a0<\/p>\n Which brings us back to Thomas, who seems to feel little to no responsibility to publicly acknowledge any conflict of interest concerns around his friendship with Crow and the involvement of Thomas\u2019s wife, Ginni, in Trump\u2019s\u00a0efforts to overturn the 2020 election<\/a>. \u201cThe court has absolutely taken a wrecking ball to its own credibility in so many ways,\u201d says\u00a0Sarah Lipton-Lubet,<\/strong> executive director of Take Back the Court, an organization advocating for the expansion of the high court. \u201cThey are pursuing an ideological agenda on behalf of a small elite and they are going to continue bulldozing that path until they\u2019re stopped.\u201d<\/p>\n But how to stop them?<\/p>\n As Lipton-Lubet points out, the high court has \u201camassed so much power\u201d that it has become difficult for Congress to rein it in, even though it theoretically operates in a system of equal branches of government. And Thomas\u2019s scandal, which seems to constitute a brazen violation of federal law, has only\u00a0underscored the awesome extent of that power<\/a>: impeachment? A nonstarter, thanks to a Republican Party that has rallied around Thomas rather than condemn him. Resignation? That would require Thomas to have \u201crespect for the court as an institution, for his role as a public servant, for the basic rule of law,\u201d Lipton-Lubet tells me, and \u201cit\u2019s clear he doesn\u2019t have any of those things.\u201d<\/p>\n Lacking sharp legislative teeth, Democrats are essentially hoping to outsource immediate oversight to the executive and judicial branches\u2014calling for a Justice Department investigation, which it has yet to open. They\u2019ve also demanded that Roberts conduct his own probe, which he has not indicated to Whitehouse he would do. (The Supreme Court did not respond to\u00a0Vanity Fair<\/em>\u2019s request for comment.)\u00a0\u201cThe time has come for a new public conversation on ways to restore confidence in the Court\u2019s ethical standards,\u201d Senate Judiciary Committee Chair\u00a0Dick Durbin<\/strong> said in a Thursday\u00a0letter<\/a>, inviting Roberts to answer questions before the committee early next month.<\/p>\n<\/div>\n