Judge Aileen Cannon, Justices Alito, Thomas et al.: How are Judges Managed, Disciplined, Controlled in our Legal System?

NeuwirthLawCourts, In the News

One of the fascinating outgrowths of the Trump presidency was the realization that much of what we take for granted as lawyers and citizens was based upon abiding by long-established norms. So, for example, the president would not bash his own civil servants or judges would be policed by their brethren or superiors.  Even judges have bosses.  But, post-Trump, things have plainly changed.  What do I mean? How does this affect us?

Take Judge Cannon for example.  Traditionally, if a judge, even a federal judge with a lifetime appointment, got spanked by her appellate court for legally baseless decisions, she would avoid future interactions with that case or with tail between legs return to a more proper course of conduct. That norm is now gone. So, Judge Cannon will likely continue to act in a really curious manner throughout the Trump case. Traditionally, the Chief Judge of her Court would sit her down and say you should recuse from this case or you are not up to the spotlight or you are making this District look bad.  That plainly did not happen or did not get through to her.  Is there a check on her? Probably not, other than the appellate court looking askance at any decision of hers that is appealed.

If she was newly rewarded with a mar a lago membership, gratis, she would have to report it and probably turn it down. Whether she would is an open question.

The same is not true for Justices Alito and Thomas. There really is no code of ethics for the Supremes and they are abusing the public trust to the extent that there was a norm of conduct. While it makes them look craven and stupid or shameless, it plainly does not change their behavior.

Today, we learned that the hard right wing of the Court was willing to sign on to some sort of silly federalist society hooey that a state court cannot review and overturn the decisions of the state legislature on issues of elections. This novel, to me, independent state legislature theory, was rejected 6-3 with Alito, Gorsuch, and Thomas supporting this nonsense. The recent decisions seem to show that Justice Kavanaugh is beginning to form a little voting bloc with Justice Roberts that can act as a swing decision-maker in certain cases.

Nevertheless, there is no check on the Court embarrassing themselves. The prospect of impeaching judges is really only reserved for criminal activity or bribe taking. The prospect of expanding the Court is not realistic. Basically, the GOP got what they wanted in a severely right wing Court and we all have to live with it for a while. The amusing part of this is that the Court is so far to the right of where the country is that they are just digging a bigger hole for the GOP in future elections.  But, is there anything to be done about it? Not really.  Elections have consequences.