The Struggle for the Soul of America: Hold Ethically Challenged Supreme Court to Account

Posted on November 26, 2022 by Author: Bruce Berlin

While we have left-leaning judges and right-leaning judges, Americans expect all judges to adhere to strict ethical standards. That would be especially true of justices who sit on the U.S. Supreme Court, the highest court in the land. Yet, the nine justices of the Supreme Court are the only judges in the country who are not bound by a written code of ethics.[1]

Chief Justice John Roberts has asserted that there is “no reason” to adopt a Supreme Court ethics code because members of his court consult a wide variety of other sources for guidance.[2] But recent revelations and events are proving him wrong.

The 25-Year Crusade to Overturn Roe v. Wade

In 1996, Rev. Rob Schenck founded Faith and Action, an ecumenical outreach ministry “to top-level government officials located in Washington, DC, throughout the United States and around the world…They seek to base their outreach on a personal relationship with the person targeted.”[3]

According to Rev. Schenck, Faith and Action aims to “win the hearts and minds of those who make public policy.” Its mission is to reintroduce the Word of God into the public debate surrounding legislation and policy matters.” It is a leader in the anti-abortion movement. Although it targets elected officials, government employees, Supreme Court justices and clerks, and other government personnel, it is a 501(c)(3) tax-exempt organization.[4]

As the leader of Faith and Action, Rev. Schenck was an effective, pro-life lobbyist working to influence members of the Supreme Court, especially Justices Alito, Scalia and Thomas. Raising over $30 million, he recruited wealthy donors and encouraged “them to invite the justices to meals, to their vacation homes or to private clubs. He advised allies to contribute money to the Supreme Court Historical Society and then mingle with justices at its functions. He ingratiated himself with court officials who could help give him access.”[5]

Mr. Schenck said “his aim was not to change minds, but rather to stiffen the resolve of the court’s conservatives in taking uncompromising stances that could eventually lead to a reversal of Roe.”[6] Apparently, he succeeded. In the Court’s recent Dobbs case overruling Roe v. Wade, Chief Justice Roberts tried unsuccessfully to limit but still save the constitutional right to abortion. The five justices to his right refused to accept Roberts’ compromise.[7]

Court Leaks Raise Serious Ethical Issues

The fact that the pending Dobbs decision was leaked in advance raises additional ethical concerns. As noted by Newsweek, the leaking of the draft opinion with the names of the five conservative justices who had already signed on to it “made it nearly impossible for any of those five justices to change their minds.”[8]

It was clearly in the interest of Justice Alito, the author of the hardline Dobbs decision, to make certain that none of his fellow conservatives had a change of heart. In fact, there was a similar advanced leak of the Hobby Lobby ruling that requiring family-owned corporations to pay for insurance covering contraception violated their religious freedoms.[9]

That 5-4 majority opinion which adversely affected the Affordable Care Act was also written by Alito in 2014. Rev. Schenck received the advance notice of the decision from a major donor who had had dinner with Justice Alito the previous night. He “used that information to prepare a public relations push“ that promoted his religious right organization.[10]

The Urgent Need for Reforming the Court

It’s bad enough that we have a Supreme Court heavily titled to the right. Now, on top of that, at least one justice appears to be very ethically compromised. In addition, Brian Fallon, executive director of Demand Justice, has called for an ethics probe into right-wing Justice Clarence Thomas’s alleged conflicts of interest in cases involving efforts to overturn the 2020 election in which his wife, Ginni, participated.[11]

Fallon thinks the Senate Judiciary Committee “should immediately move to investigate the apparent leak by Justice Alito.” He believes that “Structural reform of the court, including strict new ethics rules, is needed now more than ever.”[12]

We cannot let this go. A thorough public investigation by Congress is required, and, possibly, impeachment proceedings. Call your senators and representatives. Demand action.

Bruce Berlin

A retired, public sector ethics attorney, Berlin is the author of Breaking Big Money’s Grip on America (See breakingbigmoneysgrip.com.), the founder of New Mexicans for Money Out of Politics, a former U.S. Institute of Peace fellow, and the founder and former executive director of The Trinity Forum for International Security and Conflict Resolution. He can be reached at breakingbigmoneysgrip@gmail.com.

Subscribe to this blog at https://breakingbigmoneysgrip.com/my-blog-3/. Join the movement to revive our democracy. Together we can save the soul of America.

[1] https://slate.com/news-and-politics/2019/01/supreme-court-ethics-code-judges-john-roberts.html

[2] Ibid.

[3] https://en.wikipedia.org/wiki/Faith_and_Action

[4] Ibid.

[5] https://www.nytimes.com/2022/11/19/us/supreme-court-leak-abortion-roe-wade.html

[6] Ibid.

[7] https://www.cnn.com/2022/07/26/politics/supreme-court-john-roberts-abortion-dobbs/index.html

[8] https://www.newsweek.com/conservative-likely-leaked-dobbs-decision-opinion-1755496

[9] https://www.nytimes.com/2022/11/19/us/supreme-court-leak-abortion-roe-wade.html

[10] Ibid.

[11] https://www.latimes.com/opinion/story/2022-11-23/clarence-thomas-recusal-supreme-court-jan-6

[12] https://www.commondreams.org/news/2022/11/19/calls-ethics-probe-follow-bombshell-report-right-wing-attempts-influence-supreme

The Struggle for the Soul of America: Can Democrats Pull an Upset in this November’s Mid-term Elections?

Posted on August 8, 2022 by Author: Bruce Berlin

(Note: I am taking a break. This is my last blog until after Labor Day. Back at you then.)

History tells us that the odds of the party occupying the White House winning the mid-term elections are pretty slim. “Since the end of World War II, the president’s party has lost House seats in all but two midterms: 2002 and 1998…”[1]

Until June 24^th when the Supreme Court overruled Roe v. Wade’s right to abortion,[2] it appeared the conventional wisdom would prevail, and a Republican red-wave tsunami was gathering steam. In the last six weeks, however, the tide has turned purple, if not downright blue.

So much is now going the Democrats’ way, it’s hard to believe. No one thought that red state Kansas would support abortion rights by 18 percentage points.[3] Nor did most people think that Sens. Manchin and Sinema would sign on to the Democrats’ climate, health care and tax legislation,[4] assuring its passage in the next week or so.[5] The renamed Inflation Reduction Act will bring the country close to its emission reduction goals of cutting carbon emissions by roughly 40% by 2030. It will also lower drug prices by permitting Medicare to negotiate prescription drug prices and extend the Affordable Care Act for three more years.[6]

In addition, here’s what else has recently boosted the Democrats’ chances in November:

Hiring surged in July with 528,000 new jobs indicating the economy is improving.
Last week a U.S. drone strike (with no collateral damage) killed Al-Qaeda’s leader Ayman Al-Zawahiri, who was largely responsible for the 9/11 terrorist attack.
The PACT Act passed with full Dem support, providing aid to veterans exposed to toxic burn pits while serving their country, after Republicans were forced to drop their opposition.
Gas prices declined for the seventh straight week helping to ease the fear of rising inflation.[7]
The Dems passed the CHIPS Act with some Republicans support (See my blog, Manchin and Schumer to McConnell and the Republicans, “Gotcha!” at https://breakingbigmoneysgrip.com/my-blog/) to bolster the domestic semiconductor industry.

Nevertheless, the elections are still three months away. While the Democrats now have a much stronger record to run on then they did just a couple of months ago, they will need an enthusiastic voter turnout, like the one in the recent Kansas primary affirming abortion rights, to upset the GOP and hold onto their Congressional majorities.

What was just a pipedream not long ago is now a realistic goal. With much of the Republican Party seeking permanent one-party rule,[8] the Democrats are finally giving voters good reason to stick with them by demonstrating that they can produce concrete results for the American people. Though it’s far short of the progressive ideal and not everything President Biden promised during the 2020 campaign, he and his party have made significant progress in the face of stiff Republican opposition. Just think what they could do if, we, the voters gave them greater majorities to work with in November. One can only hope. All of us working together to get out the vote can turn hope into reality this fall.

Bruce Berlin, J.D.

A retired, public sector ethics attorney, Berlin is the author of Breaking Big Money’s Grip on America (See breakingbigmoneysgrip.com.), the founder of New Mexicans for Money Out of Politics, a former U.S. Institute of Peace fellow, and the founder and former executive director of The Trinity Forum for International Security and Conflict Resolution. He can be reached at breakingbigmoneysgrip@gmail.com.

Subscribe to this blog at https://breakingbigmoneysgrip.com/my-blog-3/. Join the movement to revive our democracy. Together we can save the soul of America.

[1] https://fivethirtyeight.com/features/why-the-presidents-party-almost-always-has-a-bad-midterm/

[2] https://www.npr.org/2022/06/24/1102305878/supreme-court-abortion-roe-v-wade-decision-overturn

[3] https://www.nytimes.com/2022/08/02/us/kansas-abortion-rights-vote.html

[4] https://www.politico.com/news/2022/08/04/dems-agenda-energy-climate-bill-00049875

[5] https://www.nytimes.com/live/2022/08/07/us/climate-tax-deal-vote

[6] https://www.yahoo.com/news/dont-believe-trump-gop-biden-130045250.html

[7] Ibid.

[8] https://www.theguardian.com/commentisfree/2022/jan/04/trump-republican-party-democracy

The Struggle for the Soul of America: Time for All of Us to Go the Extra Mile for Our Country

Posted on July 25, 2022 by Author: Bruce Berlin

Time is running out for President Biden and the Democratic Congress to restore our faltering country. Trump and his Republican cohorts are hell-bent on destroying American democracy and creating a one-party autocracy, if and when they gain control of the federal government.[1]

Denying the reality of man-made climate change, Congressional Republicans reject the need to protect our planet from the disastrous effects of global warming.

Snubbing the idea that easy access to guns is a primary reason for America’s mass murders epidemic, most Republicans rebuff the need for universal background checks and other meaningful gun control measures.

Renouncing a woman’s fundamental right to control her own body, Republican officials forbid abortion, even in the case of a 10-year-old rape victim.

The list goes on and on.

Most forecasts have the Democrats losing the House and possibly the Senate in this fall’s elections. Even if they only lose their House majority, the Democrats ability to pass any sensible legislative measures over Republican obstruction will be practically impossible. If they lose the Senate too, all of Biden’s judicial and executive branch nominations will be in hostile Republican hands as well.

It’s time to ask ourselves how much do we care about the future of our country? If there ever was a time our country needed us to step up and go the extra mile, it’s now. Together, I believe we can turn this around.

Though the Biden administration is well aware of the extremely harsh consequences of a Republican takeover, it seems unable or unwilling to meet the moment with the full power of executive authority while it still has the opportunity. Some Democrats and environmental groups are urging Biden to immediately declare a climate emergency to unlock the powers of the National Emergency Act to pursue actions to curb greenhouse gas emissions and build a better green economy.[2]

In announcing a recent series of executive actions targeting the climate crisis, Biden stopped short of the national climate emergency declaration called for by the Center for Biological Diversity and more than 1,200 other groups. “The world’s burning up from California to Croatia, and right now Biden’s fighting fire with the trickle from a garden hose,” said Jean Su, Energy Justice program director at the Center for Biological Diversity.[3]

The same is true in the administration’s efforts to combat gun violence. Calling on Biden to declare a public health emergency, Kris Brown, president of the Brady Campaign, exclaimed, “This should be an all-government, all-hands-on-deck approach to solve this issue…”[4]

Lindsay Nichols of the gun control group Giffords has called for Biden to eliminate background check loopholes through executive action. Nichols also wants the Department of Justice to scale up its anti-gun trafficking strike forces while others are demanding a White House office dedicated to addressing gun violence.[5]

Regarding abortion rights, Biden signed an executive order “directing his health department to expand access to abortion pills, beef up enforcement of Obamacare’s birth control coverage mandate and stand up an army of pro bono lawyers to help defend people criminally charged for seeking or providing the procedure.” Still “many activists and abortion providers voiced frustration with the measure’s scope, vagueness and timing and worried it would do little to influence the impact on the ground of mounting state bans.”[6]

So, there’s two things we all need to do. First, contact your senators and representatives as well as the White House. Urge them to do more. Go the extra mile for climate change, gun control and abortion rights.

Second, work to get out the vote in November (https://www.rockthevote.org/get-involved/help-get-out-the-vote/; https://ballotpedia.org/Get_out_the_vote) for all those candidates who support strong measures to solve these urgent issues. Together we can make a difference.

Bruce Berlin, J.D.

Subscribe to this blog at https://breakingbigmoneysgrip.com/my-blog-3/. Join the movement to revive our democracy. Together we can save the soul of America.

[1] https://www.theguardian.com/commentisfree/2022/jan/04/trump-republican-party-democracy

[2] https://www.cnbc.com/2022/07/20/biden-announces-new-climate-change-programs-no-emergency-declaration.html

[3]https://biologicaldiversity.org/w/news/press-releases/biden-stops-short-of-declaring-national-climate-emergency-2022-07-20/

[4] https://thehill.com/homenews/administration/3502639-biden-has-limited-options-but-there-are-some-things-he-can-do-on-guns/

[5] Ibid.

[6] https://www.politico.com/news/2022/07/08/biden-abortion-executive-order-00044647

The Struggle for the Soul of America: It’s Time to Fight Back!

Posted on July 3, 2022 by Author: Bruce Berlin

In response to the recent Supreme Court decisions undercutting women’s rights, environmental protection, gun control and more, I agree with environmentalist Bill McKibben. His recent observations remind me of the Chinese proverb, “in every crisis lies the seed of opportunity.[1] McKibben wrote:

A reasonable reaction to the week’s Supreme Court rulings, which culminated in Thursday’s gutting of the Clean Air Act, would be: we are so screwed.

But there’s another way to look at it: we can turn the right-wing’s wet dream into a nightmare for them if we fight back. If we seize it, we have the best opportunity in many years for reconfiguring American politics.

The key thing to understand about these Supreme Court decisions is that they’re fantastically unpopular. On guns, on choice, and on climate the Court has taken us places Americans badly do not want to go. By majorities of two-thirds or more Americans detest these opinions; those are majorities large enough to win elections and to shape policy, even in our corroded democracy. The right, after decades of slow and careful and patient nibbling away at rights and norms is suddenly rushing full-tilt. That’s dangerous for us, but also for them. The force of that charge can, jiu jitsu-like, be turned against them.[2]

This past week in the case of West Virginia v. EPA, the Court found that the Environmental Protection Agency did not have the authority to regulate reducing carbon emissions under the 1970 Clean Air Act by forcing utility companies to shift from coal to renewable energy. The Court held that Congress did not specifically authorize the EPA to regulate CO2 in this way. The ruling effectively makes it much harder for the U.S. government to combat climate change.[3]

But it does much more than that. It opens the door to the Court’s usurping the role of ultimate policymaker in many other areas of our lives as well, be it education, healthcare or any matter where Congress has designated the power to regulate to the Executive branch. In a blistering dissent, Justice Elena Kagan accuses the Court majority of substituting its own ideas about policymaking for Congress’s: “…the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy.”[4]

What’s to prevent the Court from taking this same approach in other regulatory fields? In the short political term, according to McKibben, “a promise from every Democrat that they would overturn the filibuster and expand the Court if elected.”[5]

So, we need to get every Democratic candidate for federal office to make that promise on the record before the election campaigns heat up. That promise could well boost Democratic turnout in November. McKibben argues that “our majorities on these issues are large enough to overwhelm even these archaic structures. Seventy percent is enough.”[6] In fact, this fight must be taken to state legislative elections as well. (More about that in next week’s blog.)

While inflation and the economy will be important in voters’ minds, these recent unpopular Court rulings affecting all Americans could turn November’s election in the Democrats’ favor. Following the West Virginia v. EPA decision, on Thursday a coalition of 15 climate, environmental, and social justice advocacy groups, including the Center for Popular Democracy, the Indigenous Environmental Network, Indivisible, the Movement for Black Lives and the Working Families Party, called for the addition of four justices “to restore balance to the Court.”[7]

Sen. Ed Markey (D-Mass.) and Rep. Jamaal Bowman (D-N.Y.) immediately joined this initiative. Markey asserted that “We cannot sit idly by as extremists on the Supreme Court eviscerate the authorities that the government has had for decades to combat climate change and reduce pollution…We must also pass my Judiciary Act[8] to expand the Court to restore balance and legitimacy to the bench.”[9]

With just four months until the election, the battle lines have been clearly drawn. Support the coalition’s efforts. Urge your senators and Congresspeople to abolish the filibuster and pass the Judiciary Act of 2021. Our rights and American democracy depend on all of us fighting back now!

Bruce Berlin

Subscribe to this blog at https://breakingbigmoneysgrip.com/my-blog-3/. Join the movement to revive our democracy. Together we can save the soul of America.

[1]https://www.pinterest.com/pin/368169338291210377/#:~:text=In%20every%20crisis%20lies%20the%20seed%20of%20opportunity

[2] https://www.commondreams.org/views/2022/07/02/time-now-people-powered-backlash

[3] https://www.huffpost.com/entry/supreme-court-climegae-change-carbon-emissions_n_62b36169e4b06169caa14933; https://www.washingtonpost.com/climate-environment/2022/06/30/epa-supreme-court-west-virginia/

[4] https://reason.com/volokh/2022/07/01/justice-kagan-throws-down-the-gauntlet-we-are-not-all-textualists-now/

[5] https://www.commondreams.org/views/2022/07/02/time-now-people-powered-backlash

[6] Ibid.

[7] https://www.commondreams.org/news/2022/06/30/markey-bowman-join-climate-coalition-urging-scotus-expansion

[8] https://www.commondreams.org/news/2021/04/15/combat-right-wing-assault-democracy-new-bill-would-add-four-seats-supreme-court

[9] https://www.commondreams.org/news/2022/06/30/markey-bowman-join-climate-coalition-urging-scotus-expansion

The Struggle for the Soul of America: Do Recent Decisions Expose Justice Clarence Thomas’s Impeachable Bias?

Posted on June 27, 2022 by Author: Bruce Berlin

The struggle for the soul of America got a lot more real this past week. By the end of the week, the Supreme Court had handed down two major decisions imperiling the lives of most Americans.

On Thursday the Supreme Court struck down a New York state law requiring applicants for a license to carry a gun outside of their homes to have a “proper cause” to do so. The law had made it a crime to carry a concealed firearm without a license.[1] With the Court’s ruling, we are all in greater danger of being an innocent victim of a mass shooting wherever we go.

Then, on Friday the court overruled Roe v. Wade, the 50-year-old case which established the right to an abortion was guaranteed by the U.S. Constitution. The Court found that abortion is not a Constitutional right, thereby giving individual states the power to set their own abortion laws.[2]

With Republicans controlling 26 state legislatures likely to ban abortion, millions of American women will now lose control over their reproductive health decisions.[3] Low-income women will be disproportionately affected since they lack the resources to travel to states where abortion will continue to be legal. The social injustice that the Court has unleashed is unconscionable.

While the conservative majority’s opinions are unnerving, Justice Clarence Thomas’s views deserve greater scrutiny. In the New York gun case, Justice Thomas’s majority opinion invalidated the gun control law because it prevents law-abiding citizens with ordinary self-defense needs from exercising their rights under the Second Amendment.[4] Apparently, Thomas believes an individual’s right to carry a concealed weapon in public outweighs the state’s right to protect its citizens against being killed by an angry man in schools, theaters, churches or wherever. More than 98% of all mass shooters are men, often younger than 25.[5]

In overruling the right to an abortion, Thomas’s concurring opinion indicated that the courts’ rationale should also be used to overturn substantive due process cases establishing rights to contraception, same-sex consensual relations and same-sex marriage.[6]

What is very telling, however, was Justice Thomas’s failure to include overturning the substantive due process right to interracial marriage established in the landmark civil rights case of Loving v. Virginia.[7] For those who are unaware, Thomas is black and his wife, Ginni Thomas, is white. His not objecting to the right to interracial marriage which is based on the same 14^th Amendment “due process” clause clearly looks like a biased effort to protect his own marriage. This calls into question Thomas’s ability to be an impartial arbiter of the law.

But Thomas’s inability to be an objective judge goes way beyond shielding his interracial marriage. Thomas’s confirmation hearings were very contentious due to Anita Hill’s accusations of his sexual misconduct. Liberal Democratic senators made it a central focus of the hearings. Later a former law clerk remembered Thomas saying, “The liberals made my life miserable for 43 years…And I’m going to make their lives miserable for 43 years.”[8] Thomas’s desire for revenge while on the court raises serious questions about his impartiality.

In fact, just today Thomas exhibited his lack of judicial objectivity when he was the lone dissenting vote in the Court’s refusal to hear the Coral Ridge Ministries Media appeal. That case challenged the liberal higher bar for public figures to claim libel that was established in the 1964 case of New York Times v. Sullivan.[9] Another example of Thomas’s bias against liberals unduly influencing his judicial decisions.

Last January Thomas was the only dissenting vote when the court rejected Donald Trump’s bid to block the release of his presidential records to the House select committee investigating the January 6^th insurrection. Later, the Washington Post revealed that Thomas’s wife, Ginni Thomas, sent then Chief of Staff Mark Meadows texts urging him to try to overturn the 2020 presidential election results after Trump’s loss to Joe Biden.[10]All the other conservative justices, three even nominated by Trump, rejected Trump’s request. Did Ginni Thomas’s involvement in the efforts to overturn the election influence Justice Thomas’s dissent?

Maybe it’s time for Congress to examine Justice Thomas’s lack of judicial impartiality. Along with the Court’s dangerous decisions last week, this is another issue to raise in the November elections. Another reason to vote against the Republicans who want Thomas to remain on the bench, who support carrying concealed weapons without a good reason and who deny a woman’s right to choose. Democrats need to make all this very clear to the voters in the fall. More than ever, we need to get out the vote in order to save and restore our rights.

Bruce Berlin, J.D.

Subscribe to this blog at https://breakingbigmoneysgrip.com/my-blog-3/. Join the movement to revive our democracy. Together we can save the soul of America.

[1] https://www.cnbc.com/2022/06/23/supreme-court-strikes-down-new-york-gun-law-restricting-concealed-carry.html

[2] https://www.cnbc.com/2022/06/24/roe-v-wade-overturned-by-supreme-court-ending-federal-abortion-rights.html

[3] https://www.guttmacher.org/article/2021/10/26-states-are-certain-or-likely-ban-abortion-without-roe-heres-which-ones-and-why

[4] https://www.cnbc.com/2022/06/23/supreme-court-strikes-down-new-york-gun-law-restricting-concealed-carry.html

[5] https://www.menagainstgunviolence.org/men-and-gun-violence-stats; https://www.statesman.com/story/news/politics/politifact/2022/05/27/fact-check-most-mass-shooters-ages-18-19-texas-school-shooting-uvalde-robb-elementary/9933032002/

[6] https://www.nytimes.com/2022/06/24/us/clarence-thomas-roe-griswold-lawrence-obergefell.html

[7]https://en.wikipedia.org/wiki/Loving_v._Virginia#:~:text=Loving%20v.%20Virginia%2C%20388%20U.S.,Amendment%20to%20the%20U.S.%20Constitution

[8] https://www.businessinsider.com/clarence-thomas-told-clerks-he-wants-to-make-liberals-miserable-2022-6

[9] https://www.cbs58.com/news/supreme-court-declines-to-revisit-landmark-first-amendment-decision-leaving-higher-bar-for-libel-in-place

[10] https://www.businessinsider.com/clarence-thomas-only-justice-dissent-in-trump-january-6-bid-2022-3