One reason the colonies declared independence from Great Britain was the political manipulation of the courts, but the Left today seems to think that judicial manipulation is a good idea after all.
Leftists’ campaign to control the Supreme Court includes institutional and personal threats, smears of individual justices, and now articles of impeachment from the liberal congresswoman known as AOC.
Did anyone not see that one coming from AOC? Calling names and making accusations long proved false are no more persuasive dressed up in a new way. Let’s review:
August 2019: Sen. Sheldon Whitehouse, D-R.I., and four other Senate liberals file a brief in a Second Amendment case threatening the Supreme Court with “restructuring” if it decides the case the wrong way.
March 2020: Sen. Chuck Schumer, D-N.Y., shouts from the Supreme Court steps that Justices Neil Gorsuch and Brett Kavanaugh will “pay the price” and “won’t know what hit you” unless they decide an abortion case the way he wants. USA Today’s editorial board called Schumer’s threats “beyond the pale.”
May 2022: Whitehouse introduces a bill to require the Supreme Court to adopt a code of conduct, a step that liberal Harvard Law School professor Laurence Tribe called “a stark violation of the separation of powers.” (Note: Tribe’s statement, submitted for a Senate Judiciary Committee hearing in May 2023, is strangely no longer available on the internet.)
June 2024: Left-wing group Fix the Court claims Justice Clarence Thomas didn’t disclose what it defined as “gifts” that he “likely” received.
July 10, 2024: Rep. Alexandria Ocasio-Cortez, D-N.Y., and other left-wing House members introduce resolutions to impeach both Thomas and Justice Samuel Alito.
These and other assaults have the same purpose: to demonize justices the Left believes will not be reliable political partners and to undermine the validity of Supreme Court decisions that don’t further their preferred political interests.
In other words, the Left opposes judicial independence; leftists want a Supreme Court that’s dependent, compliant, and will do what it’s told.
Ocasio-Cortez’s articles of impeachment targeting Thomas and Alito simply repackage old news.
Her impeachment resolution for Thomas, for example, accuses the justice of “refusing to report the source, description, and value of gifts.” Did you catch how “refusing” instead of “failing” makes it sound like Thomas deliberately chose to conceal information he knew he was required to report? This includes the details of noncommercial transportation, lodging, or meals that he received from friends.
You’d think that, of all places, an impeachment resolution would cite the authority requiring Thomas to report such things. You’d think that, but you’d be wrong, because no such authority exists.
Federal judges follow the Guide to Judiciary Policy when preparing their annual financial disclosures. The guide in place when Thomas joined the Supreme Court in 1991 told judges to “exclude gifts received as the personal hospitality of any individual.” The 2012 revision stated that “a ‘gift’… does not include … social hospitality based on personal relationships.”
The current rule, revised in March 2023, provides that any food, lodging, or entertainment received as “personal hospitality of any individual” need not be reported.
In other words, AOC’s accusation in the impeachment resolution targeting Thomas is worth reading only if “exclude” and “does not include” in the rule means “include” and “need not be” means “must be.” This reminds me of Humpty Dumpty saying to Alice: “When I use a word, it means what I choose it to mean—neither more nor less.”
Ocasio-Cortez’s resolution against Thomas also recycles claims that he should have recused himself from participating in certain cases before the Supreme Court.
The Left imagines a requirement that justices recuse themselves whenever their impartiality is questioned. Thankfully, here in the real world, the federal recusal statute requires a judge “to disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
The Supreme Court’s Code of Conduct explains the requirement that questioning impartiality must be reasonable: “where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.”
If there’s one adjective that does not apply to the Left’s campaign to control the Supreme Court, it’s unbiased. Not to put too fine a point on it, saying that a judge isn’t impartial simply because you don’t like how he judges is far from enough to make the accusation reasonable.
See if you can understand this: AOC’s resolution claims that, 13 years ago, a Thomas friend contributed to an organization previously founded by Thomas’ wife Ginni. That friend also served on the board of a separate organization that has filed friend-of-the-court briefs in unidentified Supreme Court cases over the years.
Thomas allegedly agreed with unspecified positions in an unknown number of those briefs filed with the high court. This organization in question wasn’t a party in any case before Thomas, mind you, but a third party who wanted to share legal arguments with the court.
AOC’s impeachment resolution claims that, therefore, Ginni Thomas has ongoing “financial interests” in entities that file legal briefs with the Supreme Court and that, therefore, Thomas must recuse himself—presumably forever—from any case in which those entities (or their donors) participate in any way.
This mess gives speculation and attenuated arguments a bad name, and it bears no resemblance to the actual standards for recusal.
Ocasio-Cortez’s impeachment resolution targeting Alito fares no better. Who would have thought that flying a flag at one’s primary and vacation residences would amount to a “high crime and misdemeanor” requiring a justice’s removal from office? While no reasonable person would, AOC’s resolution makes this the center of her attack on Alito.
The impeachment resolution claims that an inverted American flag flown for a few days at the Alito residence in early 2021 and the “Appeal to Heaven” flag flown at the Alitos’ vacation home show that Alito was “aligning himself … with the insurrectionary cause.” Rarely has a more serious charge rested on a weaker foundation.
The resolution sounds as if these flags had been designed and produced by those who dispute the 2020 election or participated in the events of Jan. 6, 2021, at the Capitol. The truth is that each flag has a long history and has been flown to convey all sorts of messages.
Protesters of the Vietnam War, for example, flew inverted American flags at marches and rallies in the 1960s. Far more people likely have seen it in the iconic photo of the American Indian Movement’s protest at Wounded Knee, South Dakota, than spotted it in media coverage of the Jan. 6 events.
Come to think of it, an inverted American flag has been used to criticize all sorts of policies of every presidential administration for decades, including Trump’s. In fact, a March 22 article in People magazine explained how an upside-down American flag has been used “by both sides of the political aisle.”
A search of archives of photos from the events of Jan. 6 found hundreds of American flags, all but one or two flown right side up.
Similarly, the “Appeal to Heaven” flag—also called the Pine Tree flag—has been flown since the American Revolution. It became the official maritime ensign of the Commonwealth of Massachusetts in April 1776 and was featured on a stamp issued by the U.S. Postal Service in 1968.
The “Appeal to Heaven” flag flew for 60 years outside San Francisco City Hall. It has been associated with the quest for American independence, and since 1776 has taken on a more general meaning that those who face injustice and have no one to defend them may rely on a higher power in their fight for justice.
How do decades, and even centuries, of history behind these symbols get completely neutralized because a few protesters on Jan. 6 held them? Is anyone who displays either flag in the future to be guilty of, as AOC’s charge claims about Alito, “show[ing] support for domestic enemies of the United States?” Of course not.
Ocasio-Cortez’s resolution offers nothing to establish either what it claims is the wide understanding of the meaning of flying each flag or, more importantly, whether Alito understood it that way or that the understanding had anything to do with the display of the flags.
Any reasonable person, however, would expect such evidence for AOC’s accusation that Alito “indicated sympathy with the efforts to overturn the 2020 election.” Such reasonable persons would expect it, but they would be disappointed. That evidence simply does not exist.
Almost as an afterthought, the impeachment resolution targeting Alito spends just two paragraphs recycling past claims that, like Thomas, he failed to disclose gifts he received from friends and did not recuse himself from certain cases.
It is truly baffling how a justice’s not disclosing what he wasn’t required to disclose—and was advised not to disclose—would, as Ocasio-Cortez’s resolution claims, lead anyone to believe that “the gift was offered and accepted in return for being influenced in the performance of an official act.”
We get it: The Left can’t stand Thomas and Alito, or any judge who takes the Constitution as it is rather than making up one that might better serve liberal political interests.
The last thing the Left wants is an independent judiciary; such independence is an obstacle to be eliminated, not a principle to be defended. The Left’s unprecedented public threats against the Supreme Court and the smearing of its justices—which led to an assassination attempt—were bad enough.
Now we see the weaponization of impeachment. Where will the Left go from here?