Should SCOTUS Judges Pal Around With Professional Bigots Whose Cases They Are Trying?
Some Supreme Court justices just can't stop being bigots.
Last week not one, but two justices with lifetime appointments to the highest court in the United States decided it would be fun to hang out with the leader of an anti-LGBTQ hate group at the Supreme Court. In the same term as SCOTUS is set to decide three important cases that will likely set the tone for decades to come.
So that's all just great.
A socialite, a priest, and a bigot walk into a bar ...
Last week, Justices Samuel Alito and Kegs Kavanaugh spent a day palling around with a Catholic activist and German socialite, a Cardinal in the Catholic Church, and Brian Brown, who leads both American and international hate groups.
Gloria von Schönburg-Glauchau is a German socialite and fundamentalist Catholic who has said that Africa has high rates of AIDS because "the blacks like to copulate ('schnackseln') a lot." She's friends with white nationalist Steve Bannon and has talked to him about letting him use her palace as a place to train right-wing Catholics. (As if this timeline needs another cartoon villain.) Cardinal Gerhard Ludwig Müller is a German Cardinal in the Roman Catholic Church who sometimes talks about how secularism is ruining the world. Brian Brown is an American bigot who spends his life fighting against equal rights for LGBTQ people. And the trio spent October 29 hanging out at the US Supreme Court with a couple of justices.
Brian Brown has spent his entire adult life attacking LGBTQ people and women. He is the executive director and president of the National Organization for Marriage (NOM), formed in 2007 to oppose marriage equality. NOM has also opposed civil unions and rights for transgender and gender nonconforming people, and fought against married same-sex couples adopting children. Brown also founded the International Organization for the Family (IOF), which supports anti-LGBTQ and anti-woman laws around the world. The IOF is designated as a hate group by the Southern Poverty Law Center. Brown is also the former president of the Howard Center for Family, Religion and Society, an anti-abortion group that is a part of the World Congress of Families, and on the Foundation Board of Trustees of the Spanish anti-abortion organization, CitizenGo. After Obergefell was decided and marriage equality became the law of the land, Brown compared his decrease in donations to Jesus being crucified.
TL;DR This guy is a hateful, bigoted, narcissistic piece of shit.
I wouldn't want homophobes and right-wing extremists like Brian Brown hanging out with SCOTUS justices any day. But it's particularly fucked here in 2019, where the Supreme Court is about to have a term full of blockbuster cases featuring LGBTQ and reproductive rights -- cases that Brown's organization is involved in.
NOM has filed amicus briefs in three cases that are currently before the Court: Bostock v. Clayton County, Altitude Express v. Zarda and R.G. & G.R. Harris Funeral Homes v. EEOC. In this lovely little trio of cases, several employers and the US Department of Justice are arguing that it's their God-given right to discriminate against the gays and transgenders — oh and also all women while they're at it.
Brian Brown's National Organization for Marriage filed amicus briefs in these cases to make very important legal arguments that treating transgender employees with dignity would be a "rejection of common sense and decency." Unsurprisingly, NOM also used the opportunity to spread the dangerous myth that trans-inclusive bathrooms put women at risk. Bigots gonna bigot, I guess.
It's also hard to imagine that five people who so vehemently hate women having reproductive rights could get together and not talk about abortion. The Court will also be deciding June Medical Services v. Gee this term, looking at Louisiana's attempts to severely restrict abortion access.
Maybe just don't.
Supreme Court justices chillin' with people who run actual hate groups doesn't do much to inspire faith in our judicial system. And at least one judicial watchdog has written to the Court to remind the justices of exactly that.
Aaron Belkin, the Director of judicial activist organization Take Back the Court, wrote a letter to Justices Alito and Kavanaugh, copying Chief Justice Roberts, asking the justices to recuse themselves from the cases Brown's hate group has filed amicus briefs in.
As I'm sure you are aware from your previous service on lower courts, Canon 2(B) of the Code of Conduct for Federal Judges states that judges must take care to avoid the appearance of improper influence:
Outside Influence. A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge ....
While the Code of Conduct unfortunately does not apply to the Supreme Court, each justice has an ethical duty to decide for themselves if recusal is necessary to avoid bias or the appearance of bias. In order to meet this duty, you must recuse yourselves s from the three cases currently before the court for which the National Organization for Marriage has filed briefs. The fact that the Supreme Court does not have formal ethics rules is no excuse for behaving unethically.
It's true: The judicial code of conduct does not apply to Supreme Court justices. The justices who have the absolute final say in the United States judicial system are the only nine federal judges who don't have to follow mandatory ethics rules.
If that sounds problematic, that's because it is.
The credibility and impartiality of the current Supreme Court is in tatters. Posing for photographs with the president of an advocacy organization that has filed briefs in matters pending before the court makes a mockery of Chief Justice Roberts' assertion that a judge's role is to impartially call balls and strikes. If you refuse to recuse yourselves, this incident will further illustrate the urgent need for structural reform of the Supreme Court in order to restore a Court that understands its role is to protect individual rights and our democracy.
In lower courts, recusal examines not just actual impropriety, but the perception of impropriety. That's because the people need to have faith in a fair and impartial judiciary. But SCOTUS justices are just like, "Nah, we're good. No ethics rules for us!" and for some reason, people keep going along with it. Democrats have made various proposals to adopt a code of ethics for the Supreme Court in recent years, but each proposal thus far has failed.
Take Back the Court's letter also took the opportunity to remind the justices that a lot of us have already lost faith in them.
The Supreme Court has become deeply politicized in recent years, thanks to a series of rulings like Shelby County v Holder, Citizens United, and Rucho v. Common Cause that have undermined basic tenets of our democracy for partisan advantage. The successful and unprecedented efforts by political branches to manipulate the size of the court for partisan purposes and your behavior, Justice Kavanaugh, during your confirmation hearings, have only deepened concerns about the politicization of the court. Your decision to meet privately with an activist who has filed amicus briefs with the court in three pending cases seems to confirm the worst fears of his critics.
It is increasingly hard to see a path where the courts save us.
Unfortunately, the righteous outrage at two of the most powerful judges in the country is unlikely to make much difference in the short-term. Justices Alito and Kavanaugh won't recuse from the cases, Chief Justice John Roberts won't pressure them to, and business will go on as usual.
But it's still important to point out fuckery like this when we see it. Maybe we'll even vote in some elected officials who actually care about stopping corruption someday. Then, perhaps, we can get some ethics rules in place for the justices on the highest court in the land.
Americans deserve better than Supreme Court justices who hobnob with bigots and hate mongers.
Well, those of us who voted for Hillary do, anyway.