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How few actual rules bind the behavior of our national leaders


This is an interesting exchange between the authors of my favorite books about the Roberts Court and New Deal Court respectively:

COHEN: Is there any precedent for such an episode in the history of the Court? How does this compare to prior scandals at the Court?

SHESOL: Well, my first reaction is that if you pitched this storyline as a scripted series on Netflix, you’d be told it’s too over-the-top to be credible. Yet here we are.

Second, on the grounds that it’s more useful than anything I might say at present, here is a piece I wrote for the NYT back in 2011 on the “extrajudicial” activities of Thomas, Alito, and others. They’re even more brazen today, if only because they have never faced any consequences (other than the opprobrium of the left and the mainstream media, opprobrium they welcome) for making political statements to politically minded crowds. You and I can write as many mean articles about them as we’d like, but short of impeachment, they’re untouchable and they revel in it.

Third, no, I can’t think of a single precedent for this sort of episode. Until Ginni Thomas, the spouses of Supreme Court justices (past and present) have understood that they should avoid activities that might reflect poorly, by association, on the reputation of the justice or might call into question the impartiality of the justice. But as recent reporting has made clear, Ginni Thomas is not merely indifferent to such expectations or unmindful of the old guardrails; she is a zealot, an ideological warrior, and sees herself as waging the same fight to the same ends that her husband is waging from the bench. There is no precedent for any of this.

Neither is there any real answer to it. In a very real sense, Clarence and Ginni Thomas are answerable only to Clarence and Ginni Thomas. The Trump Administration gave us all a hard lesson in how few actual rules bind the behavior of our national leaders, and how much depends on their good judgment and self-restraint.

And the lack of external constraints makes the Court a huge problem well beyond this particular episode. In theory, the Constitution gives Congress a lot of tools to deal with runaway courts. But the rain of your wedding day is that in the context of close party competition the extreme partisanship of the Roberts Court empowers it to do almost anything, because it will be a huge asset to a party that will almost always control at least one other federal veto point because of other infirmities of the constitutional order. It’s not necessarily a stable equilibrium, but the Court can probably remain lawless longer than it takes for the electoral system can allow national majorities to really govern.

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