Outlook not so good.

[link removed]

FBI director nominee-in-waiting Kash Patel writes children’s books

[link removed]

in which his character, a wizard, vows to protect “King Donald.” (Patel also peddled pills to reverse the Covid-19 vaccine and produced a song recorded by imprisoned January 6 insurrectionists called “Justice for All.”) Ominous credentials to head the nation’s most powerful law enforcement agency, one with a history of abuse.

We’ve been vocal about what’s gone wrong at the Supreme Court. It has been captured by a faction of a faction. But if we’ve ever needed an independent judiciary, we need it now. If guardrails crumble and the powerful quail before Donald Trump, the high court may be one of the last — indeed, at times, the only — protectors of the Constitution.

All of which makes the latest revelations about the Court so dismaying — the inside story of how the justices adopted an ethics code that is more loophole than law.

In the past two years, ProPublica and other news outlets have revealed startling misconduct. Justice Clarence Thomas for years had his lifestyle secretly subsidized by billionaire Harlan Crow. The billionaire provided lavish vacations, paid for the education of Thomas’s surrogate son, and even bought and renovated the justice’s mother’s house (with her living in it). If this happened with state legislators in Albany or Sacramento, we’d call it corruption. Justice Samuel Alito, too, took luxury travel from yet another billionaire, also without disclosing it. Leonard Leo of the Federalist Society played matchmaker between the judges and the billionaires. ProPublica won the Pulitzer Prize for its exposés.

Public outcry was loud enough that the Court last year felt compelled to issue a first-ever code of conduct. The justices explained that this was only to clear up a “misunderstanding

[link removed]

” by citizens. Instead of being the only judges with no ethics code, they now had the weakest.

Now The New York Times

[link removed]

has revealed the fevered deliberations that produced this result. It reads like the doings of sneaky pols on House of Cards. Justices sent each other memos in sealed envelopes because they were so fearful of leaks. Thomas and Alito “wrote off the Court’s critics as politically motivated and unappeasable,” write Jodi Kantor and Abbie VanSickle. The liberal justices pushed for a strong code with an enforcement mechanism, such as a panel of retired judges, to no avail.

Justice Neil Gorsuch, the newspaper reported, was most vocal in opposition and judicial self-regard. “The justices’ strength was their independence, he said, and he vowed to have no part in diminishing it,” the article reports. Gorsuch wrote a long memo of complaint as the rules were being drafted.

The result was a tepid code that did little to boost public confidence. It violates a core principle: Nobody is so wise that they should be the judge in their own case. The justices decide on their own when they must “recuse,” or refrain from hearing a case. Nor must they explain why they stepped back, though some justices have begun to do that. Most important, there is no mechanism for enforcement.

So the Court has served up mush. But the story need not end there. Congress has set rules

[link removed]

for the federal courts throughout history, as envisioned by the Constitution. Samuel Alito has waxed indignant about this. “I know this is a controversial view, but I’m willing to say it. No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court — period,” he told The Wall Street Journal. Justice Elena Kagan felt compelled to respond publicly

[link removed]

. “It just can’t be that the Court is the only institution that somehow is not subject to checks and balances from anybody else,” she said. “We’re not imperial.”

This again shows why the Court needs fundamental reform. An 18-year term limit for justices would make the Court much more accountable. It accords with a fundamental American precept: Nobody should hold too much power for too long. It’s also widely popular. The most recent Fox News poll on the issue showed that 78 percent of respondents backed term limits — in other words, strong majorities of Republicans and independents as well as Democrats.

In recent years, congressional Republicans have been hostile to Supreme Court reform. With Congress in Republican hands for the next two years at least, there’s an opportunity to deepen support among conservatives and liberals, legal scholars, bar leaders, and others. It’s an idea whose time has come.

We need a strong, independent, principled Supreme Court. The ruling last summer granting vast criminal immunity empowers the president to law-break with impunity. Major rulings are due on vital issues — including the oral arguments today on state laws banning gender-affirming medical care for transgender minors. Civil liberties violations likely to accompany mass deportation of noncitizens will surely reach the justices. This term will test whether this is a principled Court or, as seems increasingly likely, a MAGA Court.

No, Kash Patel is not a wizard. The justices wear robes, but they aren’t either. They are powerful government officials with a duty to stand up against abuse and for the rule of law. They claim they are independent. Will they act? The backstage saga of their ethics code doesn’t augur well.





Tackling Misinformation in Latino Communities

Spanish-speaking communities in the United States are uniquely vulnerable to the spread of election misinformation, which often targets their specific sociopolitical experiences and frequently goes unchecked by social media platforms. Such misleading information erodes trust in the security and integrity of U.S. elections, especially among the fast-growing Latino voting bloc. “The best way to combat the complexity of this misinformation is through well-resourced and culturally informed efforts,” Roberto Cordova writes. Read more

[link removed]

Many Texans and Georgians Don’t Understand State Voter ID Laws

A lack of understanding of state voter ID laws in Georgia and Texas leaves voters vulnerable to disenfranchisement, and that confusion increases when it comes to vote-by-mail laws, recent surveys show. In Texas, for instance, 24 percent of adults are unsure whether they need to show ID when voting in person. And in Georgia, “more than 76,000 eligible voters do not have an ID they can use to vote, far higher than the 11,779-vote margin of victory in Georgia in the 2020 presidential election,” writes Cora Henry. Read more

[link removed]

A Posse Comitatus Loophole

The president generally can’t deploy the military domestically without congressional approval unless they invoke the Insurrection Act. But Section 502(f) of Title 32 offers a worrying loophole that allows presidents to indirectly order the National Guard to do their bidding while remaining under state control. The Trump administration exploited this authority in an unprecedented way in response to racial justice protests in 2020. To stave off future abuses of the law, Joseph Nunn argues, “Congress should amend Section 502(f) to narrow and clarify its scope.” Read more

[link removed]





Coming Up

VIRTUAL EVENT: Analyzing Trump’s Plan to Invoke the Alien Enemies Act

[link removed]

Tuesday, December 10, 3–4 p.m. ET



Donald Trump has vowed to launch the biggest deportation scheme in U.S. history, in part by invoking the Alien Enemies Act of 1798 on his first day in office. Last used to intern tens of thousands of foreign nationals of Japanese, German, and Italian descent during World War II, this archaic law is back in the spotlight. But does Trump have the power to carry out his plans? And can we rely on Congress or the courts to stop him?



Join us for an urgent conversation with experts about the Alien Enemies Act and its shameful history, the incoming administration’s plans to use the law, and the obstacles that might stand in the way. RSVP today

[link removed]

Want to keep up with Brennan Center LIVE events? Subscribe to the events newsletter.

[link removed]





News

Lauren-Brooke Eisen on the president’s clemency power // NPR

[link removed]

Elizabeth Goitein on Trump’s mass deportation threat // PHILADELPHIA INQUIRER

[link removed]

Hernandez Stroud on receivership plans for NYC’s Rikers Island jail complex // NEW YORK TIMES

[link removed]

Daniel Weiner on major donors’ influence over the incoming administration // ALTERNET

[link removed]

Feedback on this newsletter? Email us at [email protected]

mailto:[email protected]







[link removed]

Brennan Center for Justice at NYU School of Law

120 Broadway, Suite 1750 New York, NY 10271

646-292-8310

tel:646-292-8310

[email protected]

mailto:[email protected]

Support Brennan Center

[link removed]

View Online

[link removed]

Want to change how you receive these emails or unsubscribe? Click here

[link removed]

to update your preferences.

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]