The attacks on the Court are unlikely to end, but everything that’s been tried so far has failed, and the Left knows it.
The attacks on the Court are unlikely to end, but everything that’s been tried so far has failed, and the Left knows it.
T he Democrats’ campaign against the Supreme Court isn’t going well. Sure, they have had an impact. They’ve generated an astroturfed press campaign with the help of sympathetic journalists. They’ve succeeded in negatively polarizing their voting base against the Court. They mainstreamed Court-packing among the party’s elected officials. They inspired an armed assassin to show up at Justice Brett Kavanaugh’s house. And undoubtedly, the people involved have raised a lot of money from their donors.
But as a campaign strategy, it was a flop. There was no great popular groundswell against the Court. While voters in 2022 and 2024 mostly (with some notable exceptions) moved to protect legal abortion under state laws, they also handed control of the White House back to the man who appointed half of the Dobbs majority. They gave the Senate back to the Republican caucus that confirmed those justices, and whose leader (John Thune, like House Speaker Mike Johnson) has an A+ rating from Susan B. Anthony Pro-Life America. A lot of factors went into the elections, but this is not how the public would act if it considered a conservative Supreme Court to be some sort of public emergency.
Joe Biden’s panicked embrace of Court-packing in July didn’t save his nomination. Kamala Harris, who had already backed Court-packing in 2019 and endorsed the Biden plan, tried to quietly signal to the radicals by hiring pro-Court-packing group Demand Justice’s executive director Brian Fallon, but she herself was afraid to talk much about her own support of the plan, leaving her supporters and apologists to either insist she didn’t mean it or maintain an embarrassed silence.
Supreme Court fights played well for Republicans before 2022. In 2016, exit polls showed that voters who considered the Court their top issue provided Donald Trump with his margin of victory. In 2018, the polarizing nature of the Kavanaugh hearings helped Republican Senate candidates buck blue-wave conditions and knock off incumbent Democratic senators in Florida, Missouri, Indiana, and North Dakota. In 2020, Republican pushback on Court-packing helped the party hold Senate seats in North Carolina, Iowa, and Maine.
Republicans were more timid this time around on the subject of the Court — but so were Democrats. They may have gone loudly all-in on abortion, but campaign messages on the activists’ theme of a “corrupt” Court clearly didn’t test well enough to justify putting a lot of ad dollars behind them.
The attacks on the Court never yielded any useful fruit at the policy level. Democrats passed no legislation, in spite of proposing a number of what they branded “reforms,” and they won’t for some time. With Republicans now in charge of both houses of Congress and about to take the reins in the White House, it will be at least four years before Democrats can either wield any governmental power to attack the Court or make any appointments to reshape its personnel. They currently lack even the power to hold more hearings.
Even some of their outside allies are melting away. Heidi Przybyla, a reliable surrogate for these attacks at NBC and later at Politico, announced after the election that she was leaving Politico and apparently leaving mainstream journalism altogether for her own outlet. That’s one fewer anti-Court activist who will be platformed by a purportedly mainstream journalistic outlet.
But at least they uncovered real wrongdoing, right? Not so much. Three recent events show how futile and self-defeating this whole campaign has been: the Judicial Conference of the United States rejecting a complaint against Justice Clarence Thomas, the Senate Judiciary Democrats burying their “report” on judicial “ethics” just before Christmas, and Chief Justice John Roberts using his annual Report on the Federal Judiciary to warn against threats to judicial independence.
The Conference’s Call
Senate conspiracy theorist Sheldon Whitehouse and “Guam will capsize” representative Hank Johnson wrote repeatedly to the Judicial Conference between April 2023 and December 2024 to hector that body into referring Justice Thomas to the attorney general for investigation on ethics charges. Of course, Attorney General Merrick Garland, himself a long-tenured federal judge, could at any time have instituted such an investigation if he actually believed that one was warranted. (Moreover, Senator Ron Wyden asked Garland directly in July — at the height of Biden’s effort to change the subject — to consider such an investigation.) It is not. Whitehouse and Johnson didn’t do this because they think there are such grounds; they just want the headline that says somebody, somewhere, in some serious office is considering it.
The Judicial Conference did consider it, because suffering fools gladly and giving every nutjob his day in court is the lot of judges. Convened by a 1922 federal statute, the Judicial Conference’s management consists of the chief justice and the chief judges of the various circuit courts of appeals and the Court of International Trade, plus a selection of district judges. Its primary mission is to oversee the administration of the courts, but this includes ethics guidance and oversight for the courts.
The theory of the Whitehouse/Johnson letters is that Justice Thomas violated the disclosure provisions of the 1978 Ethics in Government Act (the same statute that gave us the since-discarded unconstitutional Independent Counsel law) and did so “willfully,” triggering criminal penalties. Of course, disclosure rules are often dense and in need of clarification; many judges and justices have amended their disclosures after the fact or changed their disclosure practices going forward when informed that the rules were being reinterpreted. Willful disregard of the law is the highest standard of criminal intent in federal law: It requires deliberately disregarding what the law requires.
As the Judicial Conference quite properly concluded in a letter dated January 2 from its secretary, Robert J. Conrad Jr., there is no reason to believe that Justice Thomas acted willfully in not disclosing matters that were not clearly covered by the rules in force at the time. That includes rules as to which later guidance was issued — guidance that Thomas has pledged to comply with, and which resulted in him amending some disclosures.
For example, the ethics guidance of the Judicial Conference had previously instructed judges that they need not disclose personal hospitality. In March and April 2023, responding to outside pressure from publicity about Justice Thomas, the relevant committee clarified that it would henceforth require disclosure of gifts of transportation, such as on private jets and yachts. But “the Financial Disclosure Committee, generally speaking, does not apply new guidance retroactively to previously filed reports,” and it would not do so “due to confusion arising from past guidance.” Supreme Court justices — especially those who believe in strict adherence to the letter of the written law — are within their rights in taking such interpretations as authoritative until changed.
That’s even aside from other process and coverage issues discussed in the Judicial Conference’s letter, such as what authority the Conference even has over Supreme Court justices (who have voluntarily agreed to abide by its guidance) or whether it is moot to discuss a criminal referral after Wyden’s request.
The Whitehouse/Durbin Report
The Democrats, running out of time to run the Senate Judiciary Committee as 2024 drew to a close, had to release their report on “An Investigation of the Ethics Challenge at the Supreme Court” before the end of the year if they intended to release it at all. How confident they felt in the conclusions can be deduced from the fact that they waited until December 21 — the Saturday before Christmas, after Congress had left Washington — to issue it.
The thoroughly partisan 93-page report, consisting almost entirely of rehashes of previously ventilated controversies (even including the Alito flag nonsense) and previously debunked attacks, purported to reach back more than three decades, covering justices now deceased who could not defend themselves. As Justice Thomas’s friend and Ginni Thomas’s attorney Mark Paoletta observed, the report took at face value tendentious estimations provided by the left-wing advocacy group Fix the Court. The fact that the report spends five pages attacking the Judicial Conference and the Administrative Office of the U.S. Courts should give the reader some idea of the impotent rage of this report.
The Roberts Report
If the campaign against the Court and its public reputation fails to move the voters or the political system but succeeds at intimidating the justices, then it will still have succeeded, just as Franklin D. Roosevelt won the big prize when Justice Owen Roberts switched sides on New Deal cases after the Court-packing threat. Chief Justice John Roberts has been a target for this kind of thing before, as when he apparently switched his own vote in the Obamacare case in 2012 under intense pressure from Barack Obama. But if Roberts’s report on the federal judiciary is any indication, the current campaign may be backfiring, leaving Roberts more alarmed at the threats to judicial independence than at the damage to his Court’s public image.
Released on New Year’s Eve, the report’s panoramic tone is apparent from how the chief begins:
In December 1761, a little more than one year into what would be a fifty-nine year reign, King George III decreed that from that date forward, colonial judges were to serve “at the pleasure of the Crown.” This royal edict departed from the long-standing practice in England, enshrined by Parliament in the 1701 Act of Settlement, of allowing judges to retain their offices “during good behavior.”
His view of the threat of whipping up mobs may be gathered from his aside noting that John Jay, later the first chief justice, was out of action during much of the drafting of the Federalist Papers owing to “a severe head injury sustained while trying to protect a group of medical students from an angry mob who thought, erroneously, that the students were stealing cadavers from graves to practice surgery.”
Roberts waxed a bit philosophical as well about the “inevitable” tensions and criticisms in how the political branches treat the courts. But he issued a stirring warning against “four areas of illegitimate activity that, in my view, do threaten the independence of judges on which the rule of law depends: (1) violence, (2) intimidation, (3) disinformation, and (4) threats to defy lawfully entered judgments.”
Ed Whelan and Josh Blackman have delved into the weeds of this report and what light it sheds on the chief’s thinking, and Ed also collected some of the commentary from others. It’s surely true that Roberts isn’t speaking only to the Democrats here; he’s also looking ahead to another Trump term, with his mind perhaps on the unprecedented rebuke he delivered to Trump in 2018 for the then-president’s criticisms of judges. But much as was true of the prickly tone of the Court’s joint statement in 2023 when issuing its code of ethics, it’s impossible to mistake the chief’s awareness of where the main threats are coming from these days. He talks about “doxing” judges to summon angry mobs to their homes, and “activist groups intent on harassing judges have gone so far as to offer financial incentives for posting the location of certain judicial officers.” That’s the Left, not the Right. He notes the case of “the need for state and federal bar associations to come to the defense of a federal district judge whose decisions in a high-profile case prompted an elected official to call for her impeachment,” which I think is a reference to Judge Aileen Cannon. The rage from some left-wing outlets (see here, here, here, and here, for example) at Roberts suggests that they’re well aware that he’s onto them.
If they make Roberts more afraid of caving to them than of what they can do to him, that really suggests that the whole campaign has been counterproductive. Which doesn’t mean it is going away; far from it. But it does mean that, for now, it’s a complete failure, and they’re going to need to come up with something new to make it fly.