Can the Supreme Court Save Itself?

Here are some things the Supreme Court can do to save itself:

Stop 5–4 partisan decisions

• Massive changes in law in Citizens United, Shelby County, Janus, Heller, and more were 5–4 and partisan. Had Republican majority sought larger consensus, decisions would have been narrower, but Court’s credibility would have been less hurt. (Big donors would have been less happy.)

Stop the fact finding

• In Shelby County, Republican majority did fact-finding about racism; in Citizens United, fact-finding about corruption. The “facts” made the decisions possible, but (a) weren’t supported by the record, (b) weren’t true, and (c) have been debunked since. Looks like back-calculated “facts” to get decision they wanted. Plus, appellate courts are generally not to do fact finding.

Require amici & law groups to disclose their funders

• The Court is swarmed by anonymously-funded groups. These groups bring cases behind plaintiffs of convenience to advance strategic interests, and file amicus briefs, and neither parties nor Court nor public know who’s pulling the strings. Some funded as many as a dozen amicus groups in one case. The Court’s disclosure rule is a joke.

Adopt an ethics code & disclose gifts & travel

• Supreme Court Justices are the only nine federal judges not subject to an ethics code, and reporting is far less transparent than legislative and executive officials. We’d never have known Justice Scalia’s all-expenses-paid hunting vacation with right-wing millionaires had he not died on the trip. Justices taking emoluments from interests before the Court is wrong.

Stop attending fundraisers for political groups

• Kavanaugh’s “thank you” performance at the massive Federalist Society fundraiser was particularly troublesome, as the Federalist Society helped so much to get him onto the Court, and the Federalist Society both takes dark money and is networked with dark money groups with likely interests before the Court.