As Above the Law’s Elie Mystal recently reported, two of the Supreme Court’s conservative justices were photographed with the leader of the National Organization for Marriage (NOM), a prolifically anti-LGBTQ group.
— Brian S. Brown (@briansbrown) October 29, 2019
Justices Samuel Alito and Brett Kavanaugh met with the head of NOM on October 29 (the details or contents of the conversation were not disclosed).
As Mystal’s scathing post explains, NOM filed a brief in the pending Title VII cases which may decide whether, or to what extent, the federal workplace non-discrimination law protects LGBTQ+ Americans. NOM’s engagement in this case shows it
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.
Indeed, as Mystal emphasized, NOM’s brief states that “anti-discrimination laws necessarily infringe on individual liberty, [including] freedom of association…contract, and even, as these cases demonstrate, freedom of speech, freedom of religion, and privacy rights” (emphasis added).
This is a remarkably broad formulation of traditional lines of conservative argument.
That Justices Alito and Kavanaugh met with a group actively trying to persuade them in a pending case highlights the lack of ethics rules binding Supreme Court justices. While Chief Justice Roberts has “occasionally” contemplated creating such rules, there’s been no obvious effort, all the while several of his colleagues regularly engage with activist organizations trying to sway Court decisions.
While Alito and Kavanaugh would probably have to recuse themselves from cases were they serving on lower courts, alas, they will not be compelled to do so here.
The view of Supreme Court justices as independent, nonpartisan thinkers is a noxious myth, but a pervasive one. Just ask Democratic presidential candidate and South Bend Mayor Pete Buttigieg, who has caught considerable flak for embracing it over the last week, following his sort-of-endorsement of retired Associate Justice Anthony Kennedy.
At the very least, the Court would do well to consider implementing some ethics rules restraining justices’ authority to act on obvious, pre-established partiality in such cases.
Until then, let’s stop treating the judiciary as above politics; it’s craven politics by other means.
The Supreme Court is expected to issue opinions on the Title VII cases in mid-2020.