Hell is Empty and All the Devils are Here

Contempt of Court

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Where be his quiddities now, his quillities, his cases, his tenures, and his tricks? Buried here within this preamble, and this nominal Code of Conduct, are the tenures and tricks of the Chief Justice of the US Supreme Court, a placative script posturing as a means to ‘govern’ itself. Its publication purportedly addresses the widely held belief that “the Justices of this Court… regard themselves as unrestricted by any ethics rules.” In the view of the Court, this is a mistaken belief. For SCOTUS, it seems the American people are either sheep or fools. Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, corruption stalks the Court unabated.

The undersigned Justices are promulgating this Code of Conduct to set out succinctly and gather in one place the ethics rules and principles that guide the conduct of the Members of the Court. For the most part these rules and principles are not new: The Court has long had the equivalent of common law ethics rules, that is, a body of rules derived from a variety of sources, including statutory provisions, the code that applies to other members of the federal judiciary, ethics advisory opinions issued by the Judicial Conference Committee on Codes of Conduct, and historic practice. The absence of a Code, however, has led in recent years to the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules. To dispel this misunderstanding, we are issuing this Code, which largely represents a codification of principles that we have long regarded as governing our conduct.

Cynically Late

With this ‘code,’ SCOTUS has devised a performative version of a remedial mechanism that does little but encourage its Justices to continue to segregate themselves into ethically challenged corners to ensure their puppeteering litigants’ successes. In so doing, they have collaborated in what may aptly be termed the elitist ‘balkanization’ of the Nation. Their activities, when juxtaposed to their judicial reasoning that employs extraordinary legal, lexical, and historical contortions, amply satisfy the agendas of those to whom they are beholden. The issue, however, is not whether SCOTUS is ‘mutable’; it assuredly is. It is not whether, in the light of ‘various circumstances’, the Justices’ conduct can be ‘modified’; it assuredly can. The issue is whether, as mutated and modified, they must make sense. And sense is a capacious term. We all declare for sensible ethical behavior; but in using the same word we do not all mean the same thing. We must guard against the natural human tendency to confuse what sensible judicial ethics requires with our own ardent views about the sensible rules that every other man or woman must follow. Imposing a requirement of ethical behavior would prevent the Court from being the sort of nine-headed Caesar it seeks to be, giving thumbs-up or thumbs-down to whatever outcome, case by case, that suits or offends its collective fancy.

When it has come to determining what areas fall beyond its “long regarded” principles, this Court’s practice, from the earliest days of Justice Roberts’ tenure to the present, has been more reminiscent of Hannibal than of Hamlet. God has given to the Justices no sharper spur to victory than their own contempt of law, a power, for them, unlimited in its utility in frustrating a particular trial or undermining the processes of justice. A code without consequence is, for the contemptuous, not a code at all, but a theatrical play. Yet the Justices need not worry to forget the part, even to a full disgrace, for it is but a tale told by an idiot, full of sound and fury, signifying nothing.

A Justice of the Supreme Court of the United States should maintain and observe high standards of conduct in order to preserve the integrity and independence of the federal judiciary.

The Federalist Society (FedSoc) has sent its handpicked Justices to bring about the rule of righteousness in the land, to destroy the wicked and the evil-doers. In every culture, certain things acquire meaning well beyond what outsiders can comprehend. That goes for both the sacred and the profane. For society, SCOTUS culture is an insolated space. Judges are unlike every other human being. They have a diverse group of friends, and the influence of those friends on the way they do their job is sacred. Only to the outsider is the appearance of corruption spawned by the real or imagined coercive influence of these compatriots of theirs. Courts recognize their authority is granted by God, and God, not the state or any government established by man, is the source of all their rights. You think that it is more important that they follow the rules you have. You are hypocrites!

A Justice should neither knowingly lend the prestige of the judicial office to advance the private interests of the Justice or others nor knowingly convey or permit others to convey the impression that they are in a special position to influence the Justice. A Justice should not testify voluntarily as a character witness. [Emphasis added]

Leonard Leo is the FedSoc’s vice-president. His relationship with one SCOTUS Justice, Clarence Thomas, has fallen beneath watchful eyes for conduct that looks suspiciously close to bribery. The DC Attorney General currently has him under investigation for undisclosed alleged crimes likely related to that. In the speculation among some, the FedSoc “launders” money put forth to promote the anointing of its chosen Supreme Court candidates, ostensibly to prevent revealing the endorser of the check. When interpreting a criminal act, we do not play the part of a mindreader, but engaging in certain transactions with the intent to promote the carrying on of specified unlawful activity, sometimes you just know it when you see it. After all, six of the current Justices of the Court are FedSoc members. Not surprisingly then, the FedSoc opposed adopting any ethics rules related to them. Alabama Supreme Court Justice Jay Mitchell, speaking at a FedSoc event, averred, “Even if [an ethics code is] an internal code at the court… that’s going to be weaponized in some way… against conservative justices.”

Mere membership in the FedSoc violates the very first canon. Speaking at FedSoc events and heralding its work conveys naked contempt for preserving any notion of “integrity and independence,” such as when Samuel Alito received boisterous applause once for announcing “Boy, is your work needed today.” Alito was praising “the influence the society has had on the legal landscape, with its members now spread throughout the federal judiciary.” Alito’s accolades served as an admission that directly contravenes canon 2(B):

A Justice should neither knowingly lend the prestige of the judicial office to advance the private interests of the Justice or others nor knowingly convey or permit others to convey the impression that they are in a special position to influence the Justice. A Justice should not testify voluntarily as a character witness. [Emphasis added]

Because of the need to prevent corruption, properly understood not only as quid pro quo agreements, but also as undue influence on a Justice’s judgment, surely one promotes the carrying on of a corrupt enterprise by merely ensuring that it continues in business. It is hard to argue that Alito did anything but exactly this. What else is a moderate interpretation of the text? Halfway between what it really means and what he'd like it to mean?

Alito is not alone. The late Justice Scalia at a FedSoc coven once said:

That’s the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break. But you would have to be an idiot to believe that. The Constitution is not a living organism, it is a legal document. It says something and doesn’t say other things.

For Scalia, anyone who did not agree with him was an idiot. How then did he regard himself, given his regular interpretive jiggery-pokery of his own proclaimed philosophy? Of course, he happily served the applesauce when it suited his ideological, partisan, or personal motivations. Scalia and his fans were nonetheless too enamored with his brilliant legal mind, even when its wisdom has come late, to recognize that. His philosophic espousals cannot be taken seriously regardless, for he himself avowed that the judge who always likes the results he reaches is a bad judge. And Scalia loved his results, but boy did he bemoan when the majority did not.

To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

Petulance aside, speaking derisively of outsiders to the FedSoc kitchen cabinet, the members of the order of the Judicial Spoils System, hardly constitutes “observ[ing] high standards of conduct in order to preserve the integrity and independence of the federal judiciary.” But what do words even mean? Interpretations must be guided by the text and not by intentions or ideals external to it, and by the original meaning of the text, not by its evolving meaning over time. Regardless, words no longer have meaning when they say things Justices do not wish them to say. And Scalia, chieftain among the others, rarely bothered to apprehend the original meaning—or any meaning, really—of integrity. He referred to same-sex couples as “an invented new minority,” having never read of erastes and the eromenos, and encouraged ignorance in the name of religion while simultaneously informing one reporter that he and most people “believe in the devil.” But most of all he was an unabashed racist, or at the least said pretty racist things while his Johnny Come Lately wisdom recovered ground, during oral arguments before the SCOTUS like, “There are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well.” To make sure no one missed his point, he continued “One of the [amicus] briefs pointed out that most of the Black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.” And just in case that did not clarify enough, he also said “I’m just not impressed by the fact the University of Texas may have fewer [Blacks]. Maybe it ought to have fewer. I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many Blacks as possible.”

The FedSoc spent 40 years and millions of dollars to make sure SCOTUS eventually decreed affirmative action unconstitutional, and made certain it had amenable Justices lined up to see it through. Truthout.org describes the origins of FedSoc’s involvement:

The founders of the Federalist Society, who included David McIntosh, Steven G. Calabresi, Peter D. Keisler and Lee Liberman Otis, among others, had their sights on affirmative action since they were in college. As undergraduates, they sponsored a debate of the Yale Political Union on the topic: “Resolved: That Yale Should Abolish Affirmative Action.” Now-Justice Samuel Alito was a member of the Concerned Alumni of Princeton, opposed to the inclusion of women and minorities on campus.

The FedSoc founders lamented the bygone days when the Court was the midwife of Jim Crow, the right hand of union busters, and the dead hand of the Confederacy. But its resurrection would come. The Supreme art of war is to break the enemy's resistance without fighting; money is mightier than the sword. Throughout its decades-long campaign to defeat the reviled policy, it finally had bought secured enough seats for its members on the vaunted highest court. Justice and fairness be damned, it then participated in legal action aplenty before them. Any litigant involved in a SCOTUS case deciding issues related to affirmative action could not possibly expect to receive fair adjudication if even a single FedSoc Justice presided over it. More broadly, any Justice’s mere affiliation with that organization is disqualifying under several provisions of its ethics decree, assuming it actually had a disqualifying provision, which in practice it does not. Nevertheless, see the pertinent texts here: canon 1, canon 2(A), 2(B), 2(C), 4(A)(1)(a), 4(A)(1)(c), 4(B)(1), and 5(2). Indeed, the commentary on canon 4 specifically notes, “Justices, like all judges, are encouraged to engage in extrajudicial activities as long as independence and impartiality are not compromised” [emphasis added; definitions of ‘independence,’ ‘impartiality’ and ‘compromised’ omitted in the original].

Clarence Thomas, the apparent serial bribe-receiver, does not seem to understand any of these principles (or how to fill out simple complex ethics forms). Canon 3(A) and 3(B) state:

A Justice should participate in matters assigned, unless disqualified, and should maintain order and decorum in judicial proceedings… A Justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.

Ginni Thomas, the wife of Justice Clarence Thomas, actively involved herself in the attempt to overthrow the United States government. The public learned the sordid details of Ginni’s sedition in part because a case came before the SCOTUS regarding whether documents sought by the January 6 Investigative Committee enjoyed executive privilege. Disclosing those documents might reveal Ginni’s potential crimes. Only Clarence Thomas—her husband—voted to block disclosure (thus they were made public). For Ginni, we are living through what feels like the end of America, perhaps especially so once the FedSoc troops failed to advance. Thomas’s lone vote and the details that came out after revealed two key facts: 1) Thomas should have disqualified himself if he long regarded as governing [his] conduct under these now-codified, but always understood, rules. 2) Thomas “knowingly … convey[ed] … the impression that [his wife is] … in a special position to influence the Justice. Ginni’s participation in the hocus pocus rebellion is not the first time her husband voted in a way favorable to her interests.

Rebellion lay in his way, and he found it. Credit: fashionista

Thomas ruled on the highly divisive “hanging chad” case in Florida two decades ago that handed George W. Bush the presidency. Ginni, meanwhile, worked at the Heritage Foundation, a “think tank” with its own serious potential corruption issues, “collecting résumés for appointments in a certain possible Bush administration.” There is also Thomas’s long, evidently corrupt relationship with Harland Crow—another individual who had interests in cases before SCOTUS upon which Thomas ruled. Thomas played a major role in Citizens United, the case that famously destroyed any probity in political elections by allowing corporate interests the unimpeded ability to buy politicians under the guise of free speech. Both Scalia and Thomas were credibly accused of corruptly colluding in the lead-up to that decision. Common Cause, a judicial reform group, filed a petition with the Department of Justice that asserted, “It appears both justices have participated in political strategy sessions, perhaps while the case was pending, with corporate leaders whose political aims were advanced by the decision.” Now-disgraced attorney Jonathan Turley characterized that situation perfectly back before the Lyssavirus manifested unbounded:

There is an obvious lack of deterrent for individual justices. At the present time the only real deterrent comes from the media since the Judicial Code of Conduct does not apply to the justices. While federal law requires justices to recuse themselves, 28 U.S.C. 455 has not been enforced against a justice. This leaves the law aspirational and leaves such questions to the discretion of individual justice. The problem is that some justices have shown increasingly little judgment or restraint in avoiding conflicts of interest.

In his declining mental state Turley has since forgotten some of that, somehow confidently affirming that Ginni and Clarence “keep their professional lives separate,” as if he hovers like an Alexa within the Thomas home, in order to defend Thomas’s corrupt refusal to recuse. The code’s commentary says that “recusal provisions depend on the Justice’s knowledge of certain relationships or interests.” Justice Thomas obviously knew of his relationship with his wife, and certainly knew of her “interests” in respective cases before the Court. Thomas also clearly knew about his relationship with and the litigative interests of Crow, who repeatedly showered gifts upon Thomas and his family. Evidently, Thomas does not feel the need, as some do, to identify some ‘secondary effects’ of his appearance of impropriety. Scalia and Thomas both knew what their presence at “retreats” discussing political strategies meant for the business coming before their court. Every Justice involving themselves with the FedSoc knows what the score is; and if not, they lack the intellect necessary for the highest court in the land.

If time be of all things the most precious, wasting time must be, as Poor Richard says, the greatest prodigality, since, as he elsewhere tells us, lost time is never found again. So let us not lose more in pontificating on the corrupt failure to recuse. Despite Abraham Lincoln’s optimism that We the People are the rightful masters of both Congress and the Courts, it seems not so. Rather, in speaking about Lincoln, Robert Ingersoll aptly noted, “"Nothing discloses real character like the use of power. It is easy for the weak to be gentle. Most people can bear adversity. But if you wish to know what a man really is, give him power.” The power bequeathed, it obliterates any sense that all SCOTUS Justices do—or ever did (in the last few decades, at least)—believe they owe allegiance to any ethical or moral scruples whatever. Write till your ink be dry, and with your tears, moist it again and frame some feeling line; but in so doing, no integrity will you find. For he that is proud eats up himself, pride is his own glass, his own trumpet, his own chronicle.

The time of life is short; to spend that shortness basely were too long; so remaining is a blunt coda only.

Toothless

Undoubtedly a calculated a decision, this ‘code of conduct’ contains no punitive provisions for violations. That astute Alabama judge inadvertently alluded to the reason why: it is “going to be weaponized in some way… against conservative justices.” Of course, he erroneously enounced “enforced” as “weaponized.” The evidence indicates that nearly all obvious cases of SCOTUS corruption seemingly involve self-described “conservative” Justices. Judge Mitchell understood this. There are two possible reasons why all the dirt piles upon one heap. One, it is those Justices who solely, or at least primarily, engage in corrupt activities. Or two, no one has uncovered corruption related to those Justices designated as other-than-conservative. On the second point, if it is true that the discovery yet remains, then an inference could be drawn that non-conservative Justices are much more intelligent than their conservative counterparts in the way in which they engage in and cover up their crookedness. The—perhaps—more logically sound conclusion is simply that there is no debauchery to expose. After all, with all the “opposition research” groups, conservative “think” tanks, and fabricators of evidence among certain circles, someone by now should have found something to post on social media or trumpet on supportive media networks. There is no question even a hint of filth would have hit every media outlet salivating over any chance to bait the clicks of either “side.” Indeed, Republicans generally tried to make a big deal out of Justice Ketanji Jackson’s amendments to her financial disclosure made before she was even appointed to the Court involving around $2,000 in income she received eight years prior, income from a university that never had business before the court she presided over at the time. Of course, certain groups used this discrepancy to claim people were unjustly targeting Justice Thomas, as if some equivalence between the two existed.

When people thought the earth was flat, they were wrong. When people thought the earth was spherical, they were wrong. But if you think that thinking the earth is spherical is just as wrong as thinking the earth is flat, then your view is wronger than both of them put together.

Perhaps as tellingly, members of the GOP and Republican-appointed judges opposed the publication of any ethics rules and vociferously defend Clarence Thomas. They have hefted some pretty weighty arguments, proclaiming that any proposal of ethics rules constituted a Democratic “effort to destroy the reputation of Thomas, one of the staunchest criminal conservative voices on the court.” Senator Ted Cruz (Republican from Texas) stated, “It is sad to see 30 years later this committee is again engaged in the same despicable tactics” (presumably referring to criticisms of Thomas’s publicly revealed sexual harassment back then). Michael Mukasey, Attorney General under George W. Bush, said “If the public has a mistaken impression that the integrity of the court has been damaged, the fault for that lies with those who continue to level unfair criticism at the court and his justices.” Judge Amul Thapar, an Appeals Court Judge appointed by Trump, wrote of Thomas in his recent book, “Judges are just like every other human being. We have a diverse group of friends, and those friends don’t influence the way we do our job.” Some people, it seems, demand freedom of speech as a compensation for the freedom of thought seldom used.

For these reasons (and plenty more), most of the American public thinks the Supreme Court is currently a pathetic, unfunny joke. Despite media outlets pretending that this toothless waste of paper is a “good step,” no one giving it any serious deliberation will arrive there. The condescension of its preamble shows that the Ghost of Scalia’s hubris still haunts. He knows nothing; and he thinks he knows everything. That points clearly to a judicial career. Its declaration that the Justices “have long regarded as governing [their] conduct” these ethical rules wreaks of unmitigated refutability. They cannot see themselves or judge themselves the way they see and judge others. And the fact that the code contains no response mechanism for violations reveals it for the performative placation that it is. Chief Justice Roberts, who supposedly regularly concerns himself with his own legacy, told an audience in 2022, “I think just moving forward from things that were unfortunate is the best way to respond.” Those words will one day sit permanently in the history books, concluding the chapter about his tenure as Chief Justice over arguably the most corrupt Supreme Court in our lifetime.

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Nemo tenetur seipsum accusare; Alas, the admissions or confessions of the guilty, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence. Hoist with one’s own petard, confession is the ready way to Justification and Sanctification, pardoning of sin, and cleansing from sin. For by your words you will be justified, and by your words you will be condemned. And the words of this article are indeed, your words.

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I want to direct the readers to another article that touches on many of the same issues and has a similar, if nuanced view and is a tad less wordy (the verbosity here is by design; the key is in the links). I became aware of this article just moments before I posted, so my article does not reference it, but it is well worth the read.

How SCOTUS's "ethics code" provides cover for corruption

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I am a Certified Forensic Computer Examiner, Certified Crime Analyst, Certified Fraud Examiner, and Certified Financial Crimes Investigator with a Juris Doctor and a Master’s degree in history. I spent 10 years working in the New York State Division of Criminal Justice as Senior Analyst and Investigator. Today, I teach Cybersecurity, Ethical Hacking, and Digital Forensics at Softwarica College of IT and E-Commerce in Nepal. In addition, I offer training on Financial Crime Prevention and Investigation. I am also Vice President of Digi Technology in Nepal, for which I have also created its sister company in the USA, Digi Technology America, LLC. We provide technology solutions for businesses or individuals, including cybersecurity, all across the globe. I was a firefighter before I joined law enforcement and now I currently run a non-profit that uses mobile applications and other technologies to create Early Alert Systems for natural disasters for people living in remote or poor areas.

For another article on the decades-long fall from grace of the US Supreme Court, click below.