June 4, 2024

The Scheme 32: Alito’s MAGA Battle Flags

Madam President, as the presiding officer knows, I have come regularly to the floor to discuss multiple aspects of the scheme run by a bunch of rightwing billionaires to capture and control the Supreme Court and how that has come to affect so many Americans’ lives.

Well, in case there were not enough ethics problems already at the Supreme Court after the billionaire gift program for certain Justices gave them luxurious, free, undisclosed travel gifts around the world, paid for homes for parents, education for dependents, and even an expensive motor coach that appears never to have had the principal repaid.

Now we know that MAGA battle flags were flown over the Alito residences. We don’t know all the facts of what happened. We do know that Alito’s version of events differs from corroborated statements of other witnesses to those events, and for sure we know that people need to be able to trust that judges maintain the highest standards of impartiality, which includes avoiding even the appearance of bias.

And say what you will about the excuses and the reasons for flying MAGA battle flags over the house of a Supreme Court Justice, you cannot say that those flags did not appear. You cannot say that they did not create an appearance that, to a reasonable person, would raise serious questions about whether that Justice flying MAGA battle flags over his home had a bias, particularly with respect to cases arising out of the January 6 MAGA insurrection.

Whatever those fact differences are, they are important to try to get to the bottom of. And the problem is: It is hard to get those fact differences resolved because alone in the entire Federal Government—alone—Supreme Court Justices are subject to no factfinding process. If the presiding officer or me or the minority leader or the majority leader were subject to ethics complaints here in the Senate, our Ethics Committee has the ability to investigate and to do factfinding, and even to take statements. It is true over in the House as well. Even the powerful Speaker of the House can be subject to sanction, can be subject to investigation, and to have to make statements. Heck, President Biden sat for an official interview about the documents in his garage. But the Justices—and only the nine Justices—are protected even from any factfinding, the most rudimentary foundation of legal process.

And it is ironic because, in theory, the Supreme Court is supposed to defend the integrity of legal process in this country, and what they do is they exempt themselves from its most rudimentary pillar. Obviously, this is all part of a long string of problematic behavior that has come to the public’s attention, none of which has received adequate factfinding over at the Court.

So, for sure, these far-right Justices have demonstrated they need to be subject to an enforceable ethics code.

You remember the routine they have been on? First it was: Don’t bother us. This is nobody’s concern. And then it was: Oh, all right. We have this ethics statements that we are going to put out about our ethics. And that wasn’t good enough. So it was then: OK. OK. We will do an ethics code. But it is like: We will play by the rules of baseball, except for that part about umpires. So we will have an ethics code. We will play by the rules of baseball, but we will get to call our own balls and strikes, and we will get to call ourselves safe on base every time, and there will be no dispute because there is no factfinding to be done.

We also know that the Justices won’t talk to us about their messes, about this problem. Justice Roberts just declined a meeting with the chairs of the Judiciary Committee and the Court’s Subcommittee. Alito sent us a letter expanding on his challenged version of events, but his correspondence is not subject to the veracity discipline of any sanction for falsehoods and omissions.

Again, and making matters worse, Alito’s story conflicts with the accounts of other people involved, and the Supreme Court, uniquely in all of government, has no mechanism for getting to the truth. So if the Court won’t create one, then we need to. And my Supreme Court ethics bill would do just that.

Every investigator knows that you have to take a proper statement to get to the truth. The Supreme Court itself took statements from employees when it was investigating the Alito-Dobbs draft opinion leak.

But no matter what the circumstances, no matter how bad it gets, no factfinding process applies to the nine Justices—just them. Everybody else in the government is subject to some factfinding process—not them.

That can be fixed. Nowhere is the Supreme Court forbidden to have an inbox for ethics complaints. Nowhere is the Supreme Court forbidden to hire clerical staff to sort out nutty from legitimate ethics complaints. Nowhere is the Court forbidden to hire staff attorneys to look into the legitimate ethics complaints and do a little investigating.

Nowhere is the Court forbidden to allow the staff attorneys to interview Justices to help determine what the facts are. ‘‘I am sorry, sir. This should take less than an hour, but I need to go through the events in this complaint and get your statement of what the facts are here.’’ That is not hard.

And nowhere is the Court forbidden from allowing, for instance, a panel of senior respected Federal chief judges who administer the ethics code in their own circuits to compare what the Justices did, what the factfinding investigation revealed, with what those chief judges would allow in their circuits and then make that comparison public.

None of that offends the separation of powers. It would be all run within the judicial branch. And even without any actual disciplinary punishment, the rebuke of a Supreme Court Justice being told that their conduct wouldn’t fly in other Federal courts would be a powerful corrective and deterrent.

There is an old saying that the best way to show one stick is crooked is to lay a straight stick down next to it. A panel of senior and respected Chief Judges could provide that straight stick. Even on an advisory basis, the straight stick would be valuable.

And we are going to continue working both on the Judiciary and Finance Committees to get to the bottom of the mischief at the Court.