The Supreme Court is an unelected super-legislature that is riven with bribery and corruption, in addition to justices’ extreme antimajoritarian views. Rashida Tlaib’s call for impeachment and reform is causing outrage, but she’s right.
Representative Rashida Tlaib (D-MI) speaks during a House Financial Services Committee hearing in Washington, DC, on Wednesday, March 6, 2024. (Tierney L. Cross / Bloomberg via Getty Images)
The United States, we’re often told, is the greatest democracy the world has ever seen. Everyone born here is a citizen, along with plenty of people who weren’t, and all adult citizens have the right to vote. We have unusually extensive protections of free speech and freedom of the press so voters can make informed decisions. And if you don’t like how your elected representatives are acting, everyone from your congressmember to your senator to the president of the United States can be voted out of office.
Of course, this appealing picture elides how, in some ways, the United States is less democratic than many other nations. Lots of other electoral systems, for example, make it easier than ours for voters to choose between more than two political parties, and our campaign finance laws make it unusually easy for moneyed interests to bribe politicians.
And the picture becomes vastly less appealing once we notice the existence of the Supreme Court. At least corrupt politicians can be voted out of office. The nine justices of the Supreme Court aren’t elected in the first place. And, as Clarence Thomas in particular has been proving for the last year, they can get away with being showered with “gifts” from wealthy friends with no consequences whatsoever. Thomas remains one of the nine people our system vests with the authority to overturn laws passed by elected representatives — for the rest of his life.
The Supreme Court is facing a corruption crisis. We need to expand the Supreme Court, enact term limits on Supreme Court Justices, enforce a binding code of ethics, and expedite impeachment proceedings.
Thomas and Alito need to be impeached and removed from the bench. pic.twitter.com/pRQxjMqFDu
— Congresswoman Rashida Tlaib (@RepRashida) June 13, 2024
Democratic socialist congresswoman Rashida Tlaib (D-MI) wants to change that. She recently called for “Corruption Clarence” and his colleague Samuel Alito, who’s also been revealed as a recipient of “undisclosed gifts and luxury travel and hospitality” from wealthy right-wing friends, to be “impeached and removed from the bench.” She’s tied this call to her long-standing support for more basic reforms of the Court’s operations — reforms that, when taken together, would considerably decrease the power of the institution. She said:
These unelected justices serving lifetime appointments, Mr Speaker, continue, again, to strip us of our rights, shred our voting rights, gut our environmental protections, our right to breathe clean air and drink clean water, and sell our democracy to the highest bidder. It’s time to expand the Supreme Court. It’s time for reforms. I know our residents in the 12th congressional district are demanding I move with urgency on this issue. We need to enact term limits to Supreme Court justices, enforce [a] binding code of conduct, real reforms, and expedite impeachment proceedings.
She’s absolutely right to take this position. The United States is highly unusual among advanced democracies in giving its high court this much power. Most other democracies don’t have “strong judicial review,” the doctrine that the Court has the last word on throwing out any law brought before it. Theoretically, the people still have the last word through the process of amending the Constitution, but that process is deliberately cumbersome in the extreme, contrasting the United States with nations whose constitutions can be amended by the simple mechanism of national popular referendum.
The combination of the Court’s unusual power with the many ambiguities of our centuries-old constitution makes those nine justices an unelected de facto super-legislature. Any competent constitutional lawyer can come up with a legal argument on either side of any major question that comes before the Court, and high-profile politically charged cases are often decided on a straightforwardly partisan basis, with all the conservative justices voting one way and all the liberal ones dissenting.
The civics class vision of how all this works is that strong judicial review is a necessary check to protect “unpopular minorities” against the “tyranny of the majority.” But a quick glance at the historical record shows that the Supreme Court is just as capable of taking away rights already won as creating new ones, and that rich people are the “unpopular minority” they’ve been the most eager to protect.
The “gifts” Thomas and Alito have accepted from wealthy and politically interested actors underscore the flaws in the system. The corruption shreds the illusion that justices are disinterested legal scholars — philosopher kings in judicial robes — operating at a level far removed from the rough and tumble of ordinary politics.
Rep. Tlaib accused Thomas and Alito of “accepting bribes and doing the bidding of right-wing extremists.” A common counterpoint, often offered by critics who want to sound clued in and a bit world-weary, is that it’s silly to think justices with the views of Thomas and Alito need “bribes” to get them to “do the bidding of right-wing extremists.” They’d do that bidding one way or the other, out of deep and genuine conviction.
In some ways, though, that would make the facts Tlaib is pointing to worse. Let’s take it as a given that Thomas doesn’t need to be swayed from the path of apolitically interpreting the Constitution by the largesse of his good friend, the right-wing megadonor Harlan Crow, because “apolitically interpreting the Constitution” was never an option in the first place and Supreme Court justices are innately political actors. Crow ferries his favorite super-legislator for life around the world on his yacht (even as Crow has business before the Court) as a way of saying “thank you,” but it doesn’t influence any outcomes. Thomas would side with the billionaires in any case out of his deep love for the billionaire class. That all adds up to making the current power of the Court a deeper affront to the ideals of democracy than it would be if corruption per se were the only problem.
One way or the other, the shameless nature of that “thank you” to the super-legislators empowered to overturn our will, and the super-legislators’ total lack of fear of being held to account for accepting it, is a deep insult to our self-respect as citizens of what’s supposed to be a democracy. Tlaib’s proposals of adding new justices, giving them all term limits, instituting a real, binding code of conduct, and making it easier to enforce that code are all ways of clawing back some of that self-respect.