Who will investigate the U.S. Supreme Court? Unclear.

May 15, 2023 6:00 am

Photo courtesy of the Collection of the Supreme Court of the United States.

The refusal of Supreme Court Chief Justice John Roberts to appear at a recent hearing of the Senate Judiciary Committee regarding ethical standards for members of the high court intensifies the calls for an investigation of the apparent and ever-increasing ethical lapses of Justice Clarence Thomas. 

But the exponentially-growing demands for inquiry — as revelations of his questionable behavior and transactions have increased — raises the question: Whom should conduct it?

The Republican-controlled U.S. House, where the demands are coming the loudest from some Democrats, surely won’t do it. Although it has the Constitutional authority to proceed, it will refrain for fear of unraveling even more dubious dealings of Thomas, a conservative pillar of the tribunal. More revelations could lead to his departure — voluntarily or involuntarily — creating a vacancy that would be filed by a nominee of President Joe Biden, subject to confirmation by the slender Democratic-majority Senate.  

The Senate also is unlikely to start that process beyond the recent generic inquiry, especially with its currently-hobbled Committee on the Judiciary evenly-split in the absence of the ailing Sen. Dianne Feinstein.

That prospect was further dimmed by Roberts’ declination of an invitation to speak to the committee in order to “preserve judicial independence.” His rationale is laughable once you consider that the concerns regarding Thomas relate to his receipt of surreptitious largesse from an influential right-wing conservative, which itself threatens the “judicial independence” that the chief justice touts.

Roberts, it seems, is more comfortable asking questions of attorneys arguing cases before the tribunal than answering them himself.

With Congress out of the picture, that leaves the court itself to conduct an inquiry. Good luck on that one!

Its last effort at self-investigating — the leak a year ago this week of the Dobbs abortion draft decision — turned into an inconclusive shambles worthy of an inquiry by Inspector Clouseau, as initially predicted and then confirmed in a pair of pieces in the Reformer last year.

That dead-end denouement resurfaced last week when Justice Samuel Alito — the author of the draft that two months later became the elimination of the constitutional right to abortion — stated that he had fingered the likely culprit but lacked sufficient evidence to expose the wrongdoer, whom he hinted was an abortion rights supporter.

Meanwhile, Roberts, the primary defender of the tribunal’s shrinking integrity, has been reticent. He has adopted a Muhammad Ali-like “rope-a-dope” strategy, hoping the assailants wear themselves out like George Foreman in the memorable 1974 “Rumble in the Jungle,” well-depicted in recently released film “Big George Foreman.”

Roberts probably fears — as do some of his colleagues — that any robust introspective inquiry might open up doors that the tribunal would like to keep closed or, in other words, open a proverbial can of worms. What crawls out could include other transgressions and borderline conduct of some of the other jurists — including several who have accepted unreported gifts or other emoluments prior to filing belated acknowledgements. Justice Ketanji Brown Jackson, for instance, made multiple amendments of her finances during her confirmation process last year. 

Indeed, the chief himself has come under some fire for the million-plus dollars paid to his wife for work performed by her for entities with much business before the high court.

It’s best, the justices may conclude, to keep those issues bottled up rather than unleashing a torrent of troubling disclosures. In doing so, they have made many observers a Doubting Thomas.

That leaves the unofficial task of getting to the bottom of this matter to investigative journalists, whose access to key data is limited.

To increase their effectiveness, they need aid from one device: leaks.

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Marshall H. Tanick
Marshall H. Tanick

Marshall H. Tanick is a Twin Cities employment law attorney with the law firm of Meyer Njus Tanick.