The Supreme Court’s most recent term was, to be blunt, a nightmare. The few minor victories, often on narrow grounds or issues of standing, were deeply outweighed by the massive blows to democracy and good governance. These attacks were made even more galling by the continued participation of Justices Clarence Thomas and Samuel Alito, the far-right flank of a deeply conservative bench, who are each mired in what should be disqualifying ethics scandals.
Senate Democrats, despite holding a majority, have largely shown little interest in holding the two rogue justices accountable. It was a relief then when Rep. Alexandria Ocasio-Cortez, D-N.Y., introduced a pair of resolutions in the House on Wednesday calling for their impeachment and removal. Though the articles against Thomas and Alito will not pass in this Congress, they show that the charges against Thomas and Alito are strong and should stand as a rallying point for Democratic candidates this fall.
Both resolutions focus on two main points: the personal enrichment of the justices without their disclosure; and their refusal to recuse themselves from cases despite clear conflicts of interest.
Both resolutions focus on two main points: the personal enrichment of the justices without their disclosure; and their refusal to recuse themselves from cases despite clear conflicts of interest. The first of the three articles against Thomas cites the over $1.5 million in goods, cash equivalents and services from billionaire benefactor Harlan Crow that he failed to disclose over the years despite federal reporting requirements. The second and third are centered on the pro-insurrection activities of his wife, Ginni Thomas, and his subsequent involvement in the Jan. 6-related cases that reached the Supreme Court.
It’s a testament to the sweep of Thomas’ blatant conflicts of interest that the two articles against Alito seem mild in comparison. For his part, he is accused of violating his oath of office by sitting in judgment of the Jan. 6-related cases at the same time that he allowed an upside-down flag to be flown outside his home, an apparent show of bias in favor of attempts to overthrow the 2020 election. Alito is also similarly accused of failing to disclose gifts from billionaire businessman Paul Singer and then voting in favor of a ruling that produced a substantial profit for Singer.
“Corruption, without consequence, infects all it touches,” Ocasio-Cortez said in her floor speech introducing the articles, which have 18 co-sponsors. “And that is why this body, Congress, has a constitutional and moral obligation to hold these justices accountable, to maintain the integrity of our courts, and to uphold the standards of the judiciary and our institutions.”
Unlike the House GOP’s stunt impeachment of Secretary of Homeland Security Alejandro Mayorkas earlier this year, the articles filed on Wednesday are on much more solid constitutional grounds. Mayorkas was impeached for the supposed crime of enacting the president’s immigration policies. Unsurprisingly, he was acquitted in the Senate (though even if he had been removed, his successor almost certainly would enact the exact same policies).
In contrast, it is not policy differences with Alito and Thomas that are sparking Democrats’ desire to remove them, though there are many. Note that there aren’t similar calls for impeaching Justices Neil Gorsuch, who sides most often with Alito and Thomas, or Chief Justice John Roberts, who led the way on gutting the Voting Rights Act in 2013 and granting former President Donald Trump sweeping criminal immunity this term. Instead, it is Thomas and Alito’s actions that call into question their ability to issue rulings free from bias, financial gain or malice.
Specifically, in her speech Ocasio-Cortez accused the justices of violating the the Constitution’s “Good Behavior” clause.
Specifically, in her speech Ocasio-Cortez accused the justices of violating the the Constitution’s “Good Behavior” clause. Article III, Section 1 states that federal judges, including Supreme Court justices, “shall hold their Offices during good Behavior.” Broadly speaking, this means that there is no specific term that justices are limited to, nor can they simply be replaced because a new administration is in the White House or control of Congress has flipped. But many (though not all) legal scholars believe that the phrasing implies a higher standard for judges than other federal officers who are subject to impeachment.
None of the articles filed against Thomas and Alito explicitly make this case in the text. Instead, they both frame the charges as violating the more traditional impeachment standard of “high crimes and misdemeanors” as laid out in Article II, Section 4. While neither set of articles outright accuses the justices of being bribed, one of two specific crimes delineated in Article II, both call out the justices’ refusal to disclose those financial ties and recuse themselves from related cases. This does little to weaken the Democrats’ arguments, as each article cites relevant criminal laws that Thomas and Alito have allegedly violated.
It is important to be realistic about the prospects for these articles. There is no chance that they will be voted on, let alone pass. House Judiciary Chair Jim Jordan, R-Ohio, has staunchly defended Thomas and Alito’s documented improprieties. But Ocasio-Cortez is right to place in the record that at least some legislators take issue with the behavior on display and have determined it is unbefitting members of the nation’s highest court.
Further, given the importance of the decisions that these two justices, or their successors should their seats become vacant, will be called upon to make in the coming years, it is incumbent on Democrats to highlight Thomas and Alito’s mockery of an impartial judiciary. Impeachment is a political act, meant to punish political crimes against the country, committed by those empowered with the public’s trust. It is fitting then that their removal for breaking that trust should be front and center in the political campaigns of those who would want to see trust in the court’s decisions restored.
