(Photo by MELINA MARA/AFP/Getty Images)
If the Supreme Court followed the basic rules of ethics applicable to every other court, Supreme Court Justices Samuel Alito and Brett Kavanaugh would have to recuse themselves from the Bostock, Altitude Express, and R.G. & G.R. Harris Funeral Homes cases — the ones which seek to reinterpret Title VII to allow for bigotry against the LGBTQ community. Alito and Kavanaugh took some sort of meeting and even posed for a picture with the leader of a virulent anti-LGBT group, the National Organization for Marriage (NOM). Here’s the photo:
It’s really bad enough that conservative justices are so willing to give public aid and comfort to right-wing groups like the Federalist Society. Brett Kavanaugh, who has been credibly accused of attempted rape, has promised to take revenge on his enemies, so you can’t really claim the justice’s partisan hackery is surprising. But this meeting with the NOM is is outrageous. NOM has filed an amicus brief with the Court in the Bostock/Altitude/Funeral Homes cases. The Court has heard arguments and the justices are ostensibly working on their opinions in those cases RIGHT NOW. Taking meeting and a picture with people who have a case and argument pending in front of you would be unacceptable for any other court in the land.
But the Supreme Court operates under no ethics rules. John Roberts occasionally makes noises about issuing some, but he hasn’t. And I suspect the reason is that any reasonable rules would proscribe the behavior of his colleagues like Kavanaugh, Alito, and Clarence Thomas. Thomas, along with his wife Ginni, spend so much time promoting right-wing causes and groups that nearly any code of “ethics” would force Thomas to recuse himself from half of the Court’s docket.
And so NOM gets to have its little photo op and meeting with Alito and Kavanaugh who are mulling over the future of Title VII right now. You don’t have to wonder what NOM might have wanted to talk about. Again, they have a BRIEF BEFORE THE COURT right now:
Because anti-discrimination laws necessarily infringe on individual liberty, on freedom of association, on freedom of contract, and even, as these cases demonstrate, freedom of speech, freedom of religion, and privacy rights, the basic policy determination to expand such laws to new contexts and new classifications is a power our Constitution assigns to the Congress, not to unelected and largely unaccountable bureaucrats and not even to the courts.
For those playing along at home: NOM is not simply interested in “marriage” as its name suggests. No, they’re injecting themselves into a debate about LGBTQ discrimination in the workplace and, more than that, their brief is a screed against anti-discrimination laws, full stop.
If this doesn’t seem biased to you, ask yourself this question: Can I get a meeting and a photo op with Sam Alito? Can Lambda Legal? I wouldn’t want to be in the same room with Kavanaugh because I’d be afraid he’d scream at me and shove his penis in my face, but I’d love to take five minutes to talk to Alito about why he shouldn’t be a homophobic prick and instead honor the precedent set in Price Waterhouse v. Hopkins. I might not influence him, but I’d like the access to try.
This photo is direct evidence that Alito and Kavanaugh are not impartial. I could find you 100 photos of Clarence Thomas doing the same thing. It is a flagrant violation of judicial norms and ethics. It only happens because Republicans no longer care about norms or ethics. They have the votes to win and they are winning and the Chief Justice is happy to let them win.
The Supreme Court is a broken institution and it won’t be fixed until enough people understand how broken it is and are willing to act.
Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.