The Real Scandal at the Supreme Court Is Not Clarence Thomas’ Ethics Form

The liberal legal and political commentariat justifiably has its collective hair on fire about the flagrant ethics violations of Justices Clarence Thomas and Samuel Alito, both of whom hold such malleable conceptions of what constitutes an “appearance of impropriety” that it could reasonably be found in a founding-era dictionary definition of hypocrisy.

The problem with this endless and ever-worsening media SCOTUS umbrage cycle is that it stalls out in learned helplessness and furious paralysis every time. Here’s Alito’s: “Look at me, look at me. I’m German, from Germany. My heritage is German,” the justice’s wife told Windsor. “You come after me, I’m going to give it back to you. And there will be a way—it doesn’t have to be now—but there will be a way they will know.” Maddening? Yes. Actionable? Not one bit.

Keep on dishing the stories, but enough of the hand-wringing. It misses the point altogether. Each time we invoke a Supreme Court “ethics problem” we chain ourselves back to an insoluble challenge. Moreover, “ethics” or “appearances” are absolutely the wrong words for what is currently going wrong at the court. “Ethics” suggests a justice has used the salad fork instead of the fish fork. It’s not that the U.S. Supreme Court as currently constituted has an ethics problem.

Does anyone believe for even an instant that Thomas or Alito would come out differently on any given case but for the sweet, sweet interventions of Harlan Crow, Ginni Thomas, Martha-Ann Alito, or Leonard Leo? The justices’ coziness with these oligarchic donors and ideologically disturbed spouses shouldn’t give anyone an impression of “bias”—it’s a transparent reflection and confirmation of theirJustices are asked, during the theatrics of confirmation, to hold themselves to an ethical standard...

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