For Our Next Trick…

The only judges in America allowed to accept gifts, trips and presents from the public are Supreme Court justices. How is that insanity allowed? Another colossal oversight by the framers and a failure of every Chief Justice not to envision someone as corrupt as Clarence Thomas.

— Ron Filipkowski (@RonFilipkowski) June 7, 2024

The Constitution establishes a “Supreme Court” and a “Chief Justice” of that Court in Article III.

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

The jurisdiction of that Court lies largely with Congress:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

As Professor Vladeck has pointed out, the Court we accept as “traditional” in function today is largely a product of the Judicial Act of 1925. The Court, in other words, is more a creature of Congress than not.

Which is where, if we could ask them today, the Founders would say the fault lies. “Good behavior” has been defined as “for life” unless impeached. Impeachment, however, has never removed a Supreme Court justice. Congress could change that. It could certain impose ethical rules on the Court, rules enforceable by a third party.  Members of Congress are accountable to the membership (ask George Santos). Presidents are accountable to Congress and to the voters. Supreme Court justices are accountable to…? This is a matter ripe for reform.*

Congress could even declare “good behavior” is limited to a term of years. Federal judges are already forced to resign from the active bench after a certain age. Supreme Court justices set themselves above that. Because we let them. Because Congress lets them.

The Founders didn’t do anything to us, certainly nothing we can’t change. We amended the Constitution to end slavery, give women and then 18 year olds the vote; directly elect Senators, and limit Presidents to two terms. We can certainly amend Article III, if it comes to that, to make “good behavior” limited by age.

Or we could go the Abe Fortas route and open a criminal investigation into Thomas. Then assistant attorney general Rehnquist convinced Nixon that it was perfectly legal to investigate Fortas (which eventually convinced Fortas to resign). Except I think we’d need the investigation to lead to charges to lead to a conviction and then impeachment before Thomas would resign. If he would resign.

Maybe in Biden’s second term.

*Thomas admitted today the receipt of outrageously expensive gifts reported by Pro Publica months ago. He seems to have decided there’s no harm in admitting it. He’s probably right.