#fedsoc

Today, Thomas continues to steer the court into new territory — for example, he’s interested in banning same-sex marriage again:

https://www.politico.com/news/2022/06/24/thomas-constitutional-rights-00042256

And of course, he’s set precedent by hearing cases related to the attempted overthrow of the US government, despite the role his wife played in the affair:

https://www.npr.org/2022/03/30/1089595933/legal-ethics-experts-agree-justice-thomas-must-recuse-in-insurrection-cases

Thomas is not alone in furthering the right’s mission to destroy the morale of constitutional law scholars by systematically delegitimizing the court and showing it to be a vehicle for partisan politics and dark money policy laundering, but he is certainly at the vanguard:

https://pluralistic.net/2023/03/25/consequentialism/#dotards-in-robes

Today, Propublica published an expose on the vast fortune in secret gifts bestowed upon Thomas by the billionare GOP megadonor Harlan Crow, who is also one the most significant funders of political campaigns that put business before Thomas and the Supreme Court:

https://www.propublica.org/article/clarence-thomas-scotus-undisclosed-luxury-travel-gifts-crow

The story, reported by Joshua Kaplan, Justin Elliott and Alex Mierjeski is a masterwork of shoe-leather investigative journalism, drawing on aviation records, social media posts and other “open source” intelligence to expose the illegal, off-the-books “gifts” from a billionaire to an unaccountable Supreme Court justice with a lifetime appointment.

Here are a two of those gifts: a private jet/superyacht jaunt around Indonesia valued at $500,000; and a $500,000 gift to Ginni Thomas’s Tea Party group (which pays Ginni Thomas $120,000/year).

On top of that are gifts that are literally priceless: decades’ worth of summer vacations at Camp Topridge, Crow’s private estate, with its waterfall, great hall, private chefs, 25 fireplaces, thee boathouses, clay tennis court, batting range, 1950s-style soda fountain and full-scale reproduction of Hagrid’s hut.

Summer retreats to Topridge allow business leaders like Leonard Leo — the Federalist Society bankroller and mastermind who set Trump up to pack the Supreme Court — to coordinate in private with Thomas:

https://pluralistic.net/2020/09/29/betcha-cant-eat-just-one/#pwnage

They also allow top execs from PWC, Verizon and other corporations who may have business before the court to establish a warm, collegial relationship with a judge whose decisions can make billions for their employers. In its reporting, Propublica points out that Thomas got to hang out on Crow’s superyacht with Mark Paoletta, who was then general counsel for Trump’s OMB, and who has opposed any tightening of ethics rules for Supreme Court judges: “there is nothing wrong with ethics or recusals at the Supreme Court.”

Crow and Thomas also hobnob together at Crow’s Texas ranch, and at the Bohemian Grove, the Bay Area’s ultra-luxe retreat for rich creeps. Crow bought Thomas a private superyacht cruise through New Zealand, another through the Greek islands, and a river trip around Savannah, GA. He also traveled around the country on Crow’s private jet — even a short private jet trip is valued around $70,000.

Crow also makes many donations on Thomas’s behalf, from a $105,000 donation to Yale Law School for the “Justice Thomas Portrait Fund” to paying for a 7 foot tall, 1,800 lb bronze statue of the nun who taught Thomas in the eighth grade, which now stands in a New York Catholic cemetery.

This is without precedent. No Supreme Court justice in US history received comparable gifts during their tenure on the bench. Federal judges quoted in the story call it “incomprehensible,” noting that US judges bend over backwards not to owe anyone any favors, going so far as to book restaurant reservations without using their titles.

Virginia Canter, a former US government ethics lawyer of bipartisan experience said Thomas “seems to have completely disregarded his higher ethical obligations,” adding “it makes my heart sink.”

The Supreme Court’s own code of ethics prohibits justices from engaging in conduct that gives rise to the “appearance of impropriety,” but the code is “consultative,” and there are no penalties for violating it. But US judicial officers — including Thomas — are legally required to disclose things like private jet trips. Thomas did not. In general, justices must report any gift valued at more than $415, where a gift is “anything of value.” This includes instances in which a gift is given by a corporation whose owner is the true giver.

Crow is a Red Scare-haunted plutocrat who says his greatest fear is “Marxism.” He was a key donor to the anti-tax extremists at the Club For Growth, and has served on the board of the American Enterprise Institute — climate deniers who also claimed that smoking didn’t cause cancer — for 25 years.

Crow is a proud dark-money source, too, whose $10m in acknowledged donations to Republican causes and candidates are only the tip of the iceberg, next to the dark money he has provided to groups he declines to name, telling the New York Times, “I don’t disclose what I’m not required to disclose.”

Crow claims that the vast sums he’s lavished on Thomas — who, again, presides over the test cases that Crow is helping to put before him — are just “hospitality.” Crow called the private retreats with business leaders and top government officials “gatherings of friends,” and added that he was “unaware of any of our friends ever lobbying or seeking to influence Justice Thomas” while at his private estates or on his superyacht or private plane.

For his part, Thomas publicly maintains that he hates luxury. In a Crow-financed documentary about Thomas’s life, Thomas tells the camera, “I prefer the RV parks. I prefer the Walmart parking lots to the beaches and things like that. There’s something normal to me about it. I come from regular stock, and I prefer that — I prefer being around that.”

Judges often have to make determinations about conflicts of interest, and lawyers have an entire practice devoted to preventing conflicts from arising. I doubt whether Thomas himself would consent to have a dispute of his own tried in front of a judge who had received millions in gifts from his opponent.

The Supreme Court’s power comes from its legitimacy. The project of delegitimizing the court started with the right, and Democrats have been loathe to participate in any activity that would worsen the court’s reputation. As a result, the business lobby and authoritarian politicians have had free rein to turn the court into a weapon for attacking American workers, American women, and LGBTQ people.

It doesn’t have to be this way. When the Supreme Court blocked all of FDR’s New Deal policies — which were wildly popular — FDR responded by proposing age limits for Supreme Court judges. When the Supremes refused to contemplate this, FDR asked Congress for a law allowing him to appoint one new Supreme Court judge for every judge who should retire but wouldn’t.

As the vote on this bill grew nearer, the Supremes reversed themselves, voting to uphold the policies they’d struck down in their previous session. They knew that their legitimacy was all they had, and when a brave president stood up to their bullying, they caved.

https://theconversation.com/packing-the-court-amid-national-crises-lincoln-and-his-republicans-remade-the-supreme-court-to-fit-their-agenda-147139

The Supreme Court has moved America further away from the ideals of pluralistic democracy than we can even fathom, and they’re just getting started. They are taking a wrecking ball to the lives of anyone who isn’t a wealthy conservative, and they’re doing it while accepting a fortune in bribes from American oligarchs.

Have you ever wanted to say thank you for these posts? Here’s how you can: I’m kickstarting the audiobook for my next novel, a post-cyberpunk anti-finance finance thriller about Silicon Valley scams called Red Team Blues. Amazon’s Audible refuses to carry my audiobooks because they’re DRM free, but crowdfunding makes them possible.

Image: Mr. Kjetil Ree (modified) https://commons.wikimedia.org/wiki/File:US_Supreme_Court.JPG

CC BY-SA 3.0 https://creativecommons.org/licenses/by-sa/3.0/deed.en

Writing for Credit Slips, the finance law scholar Adam Levitin admits to feeling a bit of schadenfreude in that moment. The "blue collar" law scholars in "grubby" banking and money fields have always treated the conlaw set as "slightly clueless toffs":

https://www.creditslips.org/creditslips/2023/03/the-death-of-dodd-frank-banking-laws-dobbs-moment.html

As a field, conlaw fiercely resists the idea that their field is "largely a battle of normative opinions, without any quasi-objective touchstone or clearly right or wrong answers." Finance law, by contrast, firmly roots its understanding of outcomes in expediency and politics as much as the text of the law.

And of course, every conlaw scholar must know that - at certain points - the Supremes' most consequential decisions were political, overturning jurisprudence based on shifting cultural attitudes.

Think of Abraham Lincoln, whose anti-slavery laws were repeatedly struck down by the SCOTUS of the day. Lincoln's predecessors had filled the court with pro-slavery southerners who remained on the bench long after their home states had seceded from the Union:

https://theconversation.com/packing-the-court-amid-national-crises-lincoln-and-his-republicans-remade-the-supreme-court-to-fit-their-agenda-147139

That court ruled in Dred Scott that Black people were "so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit":

https://teachingamericanhistory.org/library/document/dred-scott-v-sandford/

Small wonder that the Supreme Court was considered "the last stronghold of Southern power." The court consistently ruled against Lincoln and Lincoln simply ignored their rulings:

https://constitutioncenter.org/blog/lincoln-and-taneys-great-writ-showdown

Eventually, Lincoln hit on a very honorable solution to an illegitimate court that frustrated the political will of democratically accountable lawmakers: pack the court. He reorganized the Federal Circuits to purge federal judges who supported the Confederacy.

He also filled SCOTUS vacancies with loyalists. Even so, that didn't get him a majority - but he didn't need a majority - the political support and momentum of the anti-slavery movement flipped those recalcitrant judges. The law didn't change, but once those judges saw that they were standing athwart a vast social upheaval, those judges' formerly iron certainties about the law crumbled.

That wasn't the only time the Supremes discovered heretofore unsuspected flexibilities in their granite certainty about the Constitution. Under FDR, a pro-oligarch Supreme Court consistently struck down the wildly popular New Deal policies that won him a landslide electoral victory.

These decisions were widely denounced by legal scholars - and the public. As the court annihilated worker protections and programs to rebuild the shattered economy, FDR used the bully pulpit to call the court a "no-man's-land where no Government— State or Federal—can function":

https://www.smithsonianmag.com/history/when-franklin-roosevelt-clashed-with-the-supreme-court-and-lost-78497994/

FDR proposed age limits on judges - which was just a roundabout way of forcing the retirement of the long-serving judges who'd been appointed by the Gilded Age plutocrats whose greed had precipitated the Great Depression. Forcing retirements on the "nine old men" would open up seats for FDR to fill.

When the Supremes refused to countenance such a matter, FDR went to Congress and demanded the authority to appoint a new, younger judge for every over-70 judge who wouldn't retire (contrary to popular mythology, there is no law that sets the number of Supreme Court justices at nine and the number has fluctuated widely through the history of the US).

For the next 168 days, the only newsworthy subject was the legitimacy of the Supreme Court. It filled every newspaper, barroom and workplace conversation. The GOP was demolished in the 1936 election, which were seen as a referendum on the Supreme Court's legitimacy - a referendum that SCOTUS decisively lost.

Soon, it was clear that FDR had the majority he needed to let him appoint new judges. And then...The court found religion. They upheld a minimum wage law that was substantively identical to other laws they'd struck down just a little while before.

They upheld NLRB rulings that were basically indistinguishable from others they'd invalidated. They reversed themselves on interstate commerce and opened the door to regulating coal mines. Then they came for sweatshop garment factories. The political will to pack the court weakened - but FDR still got his court, without having to pack it. The law was subservient to politics.

In the decades since, we've allowed the myth of ivory-tower conlaw to grow unchallenged, maintaining the pretense - so beloved of the Federalist Society - that the law is a "textual" matter. The sleight of hand is obvious: every oppressor wants to claim that they're "normal" while their opponents are "political." Paying women less then men, or Black people less than white people, is "the market"; while demands for pay equity are "political."

Jurisprudence reflects politics and can only ever reflect politics. The law must deal in ideas like "fairness" and "reasonableness," and these concepts change and change again. Judges' authority only comes secondarily from their bailiffs and "peace officers" - a judge's true authority comes from their perceived legitimacy.

Judges and enforcers know this, even when they don't admit it, which is why they spend so much effort on set-dressing - robes and gavels and somber paneling and formal language. Deep down, they're theater kids with pretensions.

That's what makes the decision to bail out Silicon Valley Bank so distressing for finance law scholars like Levitin: they understand their law to be grounded in prudence and the SVB bailout is so reckless. That's why Levitin calls the SVB bailout "banking law's Dobbs moment."

SVB is a bank that increased its executive compensation in lockstep with the recklessness of their management, doubling CEO Greg Becker's bonuses as he decreased the bank's reliability:

https://www.ft.com/content/02ff2860-2d5b-4e21-96af-cef596bff58e

Becker liquidated his stock just before his bank collapsed, cashing out twice on that recklessness:

https://abcnews.go.com/Business/svb-execs-sold-millions-company-stock-lead-collapse/story?id=97937058

All of SVB's execs got bonuses just hours before the bank failed:

https://www.cnbc.com/2023/03/11/silicon-valley-bank-employees-received-bonuses-hours-before-takeover.html

That's what makes the bailout so dismaying. It involves an exotic (to put it mildly; "absurd" also springs to mind) interpretation of the FDIC's statutory authority and the contours of the Dodd-Frank Act, passed after the Great Financial Crisis to ensure that the public would never reward reckless banks for failure.

As Levitin writes, "I really don't know how one can teach prudential banking regulation after SVB. How can you teach the students the formal rules—supervision, exposure and concentration limits, prompt corrective action, deposit insurance caps—when you know that the rules aren't followed?"

In other words, as with Dobbs, we have enforcers and judges behaving as though they are certain that they can maintain legitimacy in the face of widespread dismay at their actions. The politics revealed by these choices are the politics of impunity, a bedrock belief that we don't matter anymore and we can all just go fuck ourselves.

That's why SVB's apologists are so unhinged. When they argue that we had to bail out SVB because otherwise depositors would pile into Jpmorgan and other already Too Big to Fail/Too Big to Jail banks, they excluded the possibility that we'd create public banks that would break free of this seeming necessity:

https://pluralistic.net/2023/03/15/mon-dieu-les-guillotines/#ceci-nes-pas-une-bailout

When they argue that giving $2B to SVB's investors (because they were also depositors in the bank they crashed) that it's not "bailing out investors," they're ignoring the possibility that if we're gonna make up new interpretations of Dodd-Frank, we could simply tack on a "no, fuck those guys, they get nothing" rider:

https://pluralistic.net/2023/03/18/2-billion-here-2-billion-there/#socialism-for-the-rich

When they argue that they just want to save "small businesses" and "startups," they ignore the possibility that if we're going to find political will to save a bank whose balance-sheet was 90+% billionaire VC money, we might also find political will to impose conditions on the bail-ees. Like, if we're gonna save those depositors in the name of "saving jobs" we could make them sign legally binding pledges never to lay off another worker within 10 years of a stock buyback or dividend:

https://pluralistic.net/2023/03/21/tech-workers/#sharpen-your-blades-boys

The fact that none of this is on the table tells us a lot about how elites view their position in society. Specifically, it tells us that they think that the majority of us should get nothing but scraps from their tables.

They haven't made a secret of this. 40 years ago, the antitrust bar underwent a hostile takeover by billionaires' lickspittles from the Chicago School of Economics, who explicitly argued that monopolies were good and demanded that judges ignore 75 years of jurisprudence and use antitrust law to defend monopolies:

https://www.eff.org/deeplinks/2021/08/party-its-1979-og-antitrust-back-baby

The Chicago School's paymasters funded lavish junkets - the Manne Seminars - where 40% of the federal judiciary attended luxury re-education camps to teach them to love monopolies:

https://pluralistic.net/2021/08/13/post-bork-era/#manne-down

Today, those judges and the lawyers who appear before them argue that any "textual" interpretation of antitrust law - say, an interpretation that acts against monopolies - is laughable, ahistorical nonsense that "flies in the face of precedent." And yeah, it does:

https://publicknowledge.org/no-pain-no-gain-ftc-loses-bid-to-block-facebooks-acquisition-of-within/

It flies in the face of the illegitimate, corporate-purchased precedent that turned America into an oligarch's playground. It very strictly adheres to the new precedent that politics will (someday) force upon the law.

We see this in play with the copyright case against the Internet Archive, which a lower court badly fumbled yesterday, ruling against the right of libraries to scan their print holdings and lend them out because there is a "licensed" ebooks from publishers - ebooks that cost many multiples of the print editions and self-destruct after just a few lend-outs:

https://blog.archive.org/2023/03/25/the-fight-continues/

The politics here are obvious. As Brewster Kahle put it, this decision conceives of libraries as "customer service departments for corporate database products." The truth is that libraries are ancient, bedrock institutions. Libraries are older than copyright. They're older than printing. Than paper. Than commerce.

The realpolitik of this decision - and the publishing strategists at the Big Five publishers who support it - is that the party is over for us plebs, the age of public goods is behind us, and we should go back belowstairs and get used to tugging our forelocks again:

https://doctorow.medium.com/the-end-of-the-road-to-serfdom-bfad6f3b35a9

The law is political. The fight over these decisions to create socialism for the rich and rugged individualism for the poor is a political fight. Yes, we can and should call on Congress to amend the statutes to clarify them, in small words that even Supreme Court judges and Chicago-poisoned economists can understand. But that in itself won't make change - what will make change is the same thing that has always made change: politics.

[Image ID: A kraken strangling a coin-operated judge automata whose robes of office bear text reading 'to obtain a verdict/put a penny in the slot' and 'with costs.' He bears two signs reading 'VERDICT.']