ScotuS Reform
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FROM TINA PETERS
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The ‘court packing’ myth
Many pundits hailed Roberts for opposing the overturning of Roe v. Wade, but in the Dobbs decision, he lost out to the five Republican appointees on ‘his’ court who are seemingly even further right than he is.
Many progressives weren’t buying the righteous, caring and politically aloof version of himself Roberts portrayed back then, and they say this latest reporting shows they were right.
“That's interesting how there's sort of this story out there that Roberts was like a moderate and mediator. And the [NYT] story would suggest that’s not really necessarily the case,” Sen. Tina Smith (D-MN) told Raw Story after voting on the Senate floor this week.
While Republican rhetoric paints all elected Democrats — from the top of the party’s presidential ticket on down — as wanting to expand, or ‘pack,’ the court, only three Senate Democrats have formally endorsed a progressive measure to expand the size of the court, as Raw Story reported last month.
Smith and Massachusetts Democratic Sens. Ed Markey and Elizabeth Warren are the three who’ve publicly endorsed Markey’s measure to expand the size of the Supreme Court. That’s it.
Even with all the negative press, Smith says other Senate Democrats haven’t approached them about their measure to expand the size of the court.
“I haven't heard any,” Smith said.
That doesn’t mean her colleagues aren’t discussing the Roberts Court.
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an pro p 924
ginni Thomas, the wife of Supreme Court Justice Clarence Thomas, privately heaped praise on a major religious-rights group for fighting efforts to reform the nation’s highest court — efforts sparked, in large part, by her husband’s ethical lapses.
Thomas expressed her appreciation in an email sent to Kelly Shackelford, an influential litigator whose clients have won cases at the Supreme Court. Shackelford runs the First Liberty Institute, a $25 million-a-year organization that describes itself as “the largest legal organization in the nation dedicated exclusively to defending religious liberty for all Americans.”
Shackelford read Thomas’ email aloud on a July 31 private call with his group’s top donors.
[JUDGE SHOPPING?] NOPE SCOTUS
Thomas wrote that First Liberty’s opposition to court-reform proposals gave a boost to certain judges. According to Shackelford, Thomas wrote in all caps: “YOU GUYS HAVE FILLED THE SAILS OF MANY JUDGES. CAN I JUST TELL YOU, THANK YOU SO, SO, SO MUCH.”
Shackelford said he saw Thomas’ support as evidence that judges, who “can’t go out into the political sphere and fight,” were thankful for First Liberty’s work to block Supreme Court reform. “It’s neat that, you know, those of you on the call are a part of protecting the future of our court, and they really appreciate it,” he said.
On the same call, Shackelford attacked Justice Elena Kagan as “treasonous” and “disloyal” after she endorsed an enforcement mechanism for the court’s newly adopted ethics code in a recent public appearance. He said that such an ethics code would “destroy the independence of the judiciary.” (This past weekend, Justice Ketanji Brown Jackson said she too was open to an enforceable ethics code for the Supreme Court.)
After the call, First Liberty sent a recording of the 45-minute conversation to some of its supporters. ProPublica and Documented obtained that recording.
Ginni Thomas did not respond to repeated requests for comment.
First Liberty Institute did not directly respond to ProPublica and Documented’s questions about the recording. Hiram Sasser, executive general counsel at First Liberty Institute, said in a statement: “First Liberty is extremely alarmed at the Leftist attacks on our democracy and judicial independence and is fighting to bring attention to this dangerous threat. It’s shameful that the political Left seems perfectly fine destroying democracy to achieve the court decisions they favor instead of working through democratic and constitutional means.”
The July 31 call led by Shackelford came shortly after President Joe Biden had announced support for a slate of far-reaching Supreme Court changes. Biden endorsed term limits for justices, a constitutional amendment reversing the court’s recent presidential immunity decision and a binding ethics code for the court’s nine members. Kagan’s comments came before Biden’s. She did not mention any of the structural proposals Biden endorsed.
On the donor call, Shackelford voiced strong opposition to various court reform proposals, including the ones floated by Biden, as well as expanding the size of the court. All of these proposals, Shackelford said, were part of “a dangerous attempt to really destroy the court, the Supreme Court.” This effort was led by “people in the progressive, extreme left” who were “upset by just a few cases,” he said.
This is not the first time that a spouse of a Supreme Court justice injected themselves into controversial political matters. Ginni Thomas sent dozens of messages after the 2020 election that echoed then-President Donald Trump’s baseless claims of election fraud. In messages to then-White House chief of staff Mark Meadows, Thomas said “Biden and the Left is attempting the greatest Heist of our History” and urged Trump to not concede the election. In emails to Arizona and Wisconsin lawmakers, she pleaded with them to fight back against supposed fraud and send a “clean slate of Electors.” She later wrote, “The nation’s eyes are on you now. … Please consider what will happen to the nation we all love if you do not stand up and lead.” (Thomas said in 2022 she regretted sending the inflammatory messages to Meadows.)
Martha-Ann Alito, the wife of Justice Samuel Alito, faced scrutiny for flying an upside-down American flag at the family’s Virginia home — a symbol used by the Stop the Steal movement that claimed the 2020 election had been stolen from Trump. The flag flew outside the Alito home as the Supreme Court was deciding whether to hear a case related to the 2020 election. (Samuel Alito told The New York Times he had no role in flying the flag. He said his wife did it in response to “a neighbor’s use of objectionable and personally insulting language on yard signs.”)
The push to change how the court functions grew after a series of ProPublica stories showed that wealthy Republican donors have showered Thomas and Alito with free gifts and travel that they failed to disclose. Following ProPublica’s reporting, Thomas amended past disclosure reports, and the Supreme Court adopted the ethics code, its first ever.
Thomas and Alito have said they weren’t required to disclose free flights or hospitality from friends.
First Liberty has been at the forefront of a decades-long and successful effort to expand the First Amendment rights of religious groups, even as those interests can collide with other constitutional principles like maintaining the separation of church and state or providing equal protection for protected classes.
In the last several years, First Liberty has notched big victories. In June 2022, the Supreme Court’s six conservatives ruled in favor of several Maine families represented by First Liberty and the Institute for Justice, a libertarian-leaning legal advocacy group, when it struck down the state’s ban on using public funding to pay for religious schooling.
Days later, the six conservatives ruled again in favor of a First Liberty plaintiff — in this case, a former football coach at a Washington state public high school who had been fired for praying on the field after games. The conservative majority said the coach had been wrongly removed from his job, a decision hailed by religious groups and criticized by some experts who said it would now be more difficult for public schools to keep education separate from religion.
First Liberty has also represented a bakery in Oregon whose owners refused to make a cake for a same-sex wedding, citing their religious beliefs; religious groups that opposed the Biden administration’s COVID-19 vaccine mandate; and nearly three dozen Navy SEALs and military members who refused to be vaccinated for the virus on the basis of their faith. In all the cases, First Liberty’s plaintiffs won partial or full victories in lower courts or at the Supreme Court.
Shackelford, who is First Liberty’s president and CEO, has led the group for nearly three decades. His influence extends into the broader conservative movement. House Speaker Mike Johnson, a former First Liberty attorney, once called Shackelford a mentor. Shackelford has served as vice president of the Council for National Policy, an umbrella group that brings together conservative leaders and deep-pocketed donors.
He also works closely with Ziklag, the secretive network of ultrawealthy conservative Christians that aims to “take dominion” over every major sphere of influence in American culture. According to internal Ziklag newsletters obtained by ProPublica and Documented, Shackelford has participated in Supreme Court prep sessions and appeared on strategy conference calls organized by the group.
On the July 31 donor call, Shackelford kept the focus squarely on the mounting calls to reform the Supreme Court. In addition to Biden’s proposals, several groups, including prominent liberal legal outfits, have proposed other changes including term limits and stronger ethics guidelines. And earlier in July, the Brennan Center for Justice at NYU Law said it had received a $30 million gift from the private-equity investor Jim Kohlberg to create a new project that will “seek reform of the Supreme Court.”
Shackelford described all of this — Kagan’s speech, Biden’s announcement, the $30 million donation — as if it was a coordinated effort. “They’re doing everything in their power,” he told the donors. “They’re hitting from every direction.” The “extreme left,” he explained, was “upset by just a few cases, but that’s all they need to say, ‘We’re ready to totally’ — they would call ‘reform’ or ‘restructure’ the court — but almost everything they propose would actually destroy the court.”
He aimed his fiercest criticism on the donor call at Kagan. “That is incredible, somewhat treasonous, what Kagan did,” Shackelford said. “The chief justice rules the court. They’re trying to keep the other branches’ hands off of them. And then you’ve got Kagan from the inside really being somewhat disloyal and somewhat treasonous in what she’s doing.”
Shackelford accused ProPublica of being part of a campaign to “delegitimize or get rid of the court.” He said that the ethics lapses unearthed by ProPublica’s reporting were “false” and “baseless,” even though they helped spark the creation of a new ethics code and led to Thomas filing new financial disclosure forms, in effect admitting that he had failed to disclose certain gifts.
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