The Arrogance of Power

This current Supreme Court and their GOP allies may be accelerating the move toward oligarchy, but their rejection of democratic traditions and the will of the people need not define our future

United States Supreme Court (photo by SeanPavonePhoto via Getty Images)

Elon Musk, one of the world’s richest men, spent $44 billion to buy Twitter, claiming that his intention was to increase free speech and build a platform that is “maximally trusted and broadly inclusive.” As the platform’s value continues to collapse, its owner has prioritized expanding the hateful voices of white nationalists, MAGA cultists and other extremists while driving out progressives and crushing their ability to connect with other leading voices who share their values. Musk’s arrogance, anti-democratic hostility and indifference toward the harm he’s causing is more obvious than ever.

Donald Trump, a self-proclaimed billionaire who lived in a gold-laden penthouse, laughably claimed in the months leading up to the 2016 election that he was running to give “voice to the voiceless,” to represent “the forgotten men and women of this country“ and especially those “who are struggling against injustice and unfairness.” Trump even insisted that he was running “so that the powerful can no longer beat up on the powerless.” As the criminal indictments pile up, his malignant hostility to justice and the powerless—and his ability to convince others to participate in his crime spree and rejection of democratic norms, democratic institutions and the idea of democracy itself—is visible both in daylight and after nightfall.

The use and abuse of money and power for self-serving purposes is not exactly breaking news (not even these days when it’s to curry favor with oligarchs and authoritarians in other lands). Nor is the growing concentration of wealth at the highest levels: You’ve probably seen the data that the the 20 richest Americans possess more wealth than the bottom half of the population. That’s 152 million people.

But the emergence of America as increasingly ruled by oligarchy at the expense of democracy—in which political power resides with a small, elite segment, making a mockery of the will of the people, an equitable society and the value of the common good—is hard to miss. Add to this the increasing arrogance, the sense of entitlement, and the shamelessness of this royal cohort.

It’s in this context that the latest news of Supreme Court Justice Samuel Alito’s high-flying adventure with billionaire Paul Singer—organized with the help of The Federalist Society’s Leonard Leo—and his arrogant response particularly outrages. His “prebuttal” in The Wall Street Journal—hours before ProPublica published its story detailing rides on Singer’s private jet for an exclusive Alaska fishing vacation, $1000-a-night accommodations and $1,000 bottles of wine—highlights his mightier-than-thou attitude and his fractured logic.

According to his published pushback: He took that private jet ride because “that would have otherwise been an unoccupied seat.” Moreover, ProPublica’s reported luxury vacation was really a stay in “a modest one-room unit” that was “comfortable but rustic,” the meals he ate were “homestyle fare” and the wine he doesn’t remember drinking “certainly” didn’t cost $1,000.

And while acknowledging that Singer subsequently had multiple cases before the Court, including one decided in favor of his hedge fund and ultimately leading to a $2.4 billion payout, it is “incorrect” his refusal to recuse provides “an appearance of impropriety.” Why not? “It was and is my judgment,” said the justice from high above, “that these facts would not cause a reasonable and unbiased person to doubt my ability to decide the matters in question impartially.”

Yes, sir. Whatever you say, sir. Even though you chose not to mention this modest trip on your 2008 financial disclosure form required by law, who among us reasonable folk would question your utterly ethical, utter impartiality, utterly excellent judgement, especially since you sit on the highest court and enjoy the comforts of a lifetime appointment? Aren’t such questions of impropriety only for the lesser of us, including all government employees and every other judge not sitting on the Supreme Court?

But as ProPublica notes, experts “could not identify an instance of a justice ruling on a case after receiving an expensive gift paid for by one of the parties.” Here’s what Charles Geyh, a legal expert on recusals, told ProPublica: “If you were good friends, what were you doing ruling on his case? And if you weren’t good friends, what were you doing accepting this?”

You might differentiate Alito from his fellow lifetime appointee, Clarence Thomas, at least in terms of his need to justify himself; Thomas hasn’t even deigned to step off his high horse and provide a proper response to his refusal to disclose the lavish lifestyle he and his wife Ginni have enjoyed from Texas billionaire Harlan Crow. All that he felt obliged to do was release a statement through the Supreme Court’s public information office, noting that Crow and his wife are among their “dearest friends” and that “sort of personal hospitality from close personal friends” did not require disclosure. As I noted in an April essay on “The GOP’s Rejection of America”:

“No matter that they were lavished with expensive trips for 25 years, including one in 2019 likely exceeding $500,000, involving nine days of island hopping on a large private jet and a 162-foot super-yacht with a full staff and a private chef. No matter the jet and super-yacht were owned by GOP megadonor Harlan Crow, whose home includes an autographed copy of Mein Kampf and other Hitler artifacts. No matter that one of his company’s walls is adorned with an oil painting depicting Thomas, Crow and other Republicans, including the former Federalist Society chief Leonard Leo—all smoking cigars. No matter that judges are prohibited from accepting gifts from anyone with business involving the court.”

You might assume the Court would notice and care about the declining trust and favorable opinion of the public. The collapse of this institution in the last four years, as documented by Pew Research, is stunning: 69 percent favorable/30 percent unfavorable in 2019, 48 percent favorable/50 percent unfavorable in 2023.

A Gallup poll from last September provides further confirmation: As I noted in a Saturday prompt earlier this year on trust in the Supreme Court, that survey found only 47 percent of Americans have "a great deal" or "a fair amount" of trust in the judicial branch—a 20 percentage-point-drop from two years ago. And then there’s this: After the Dobbs v. Jackson Women’s Health Organization ruling overturned Roe v. Wade, a national poll conducted by Marquette University Law School found that public approval of the Supreme Court plummeted from 60 percent a year before the decision to 38 percent afterward.

Chief Justice John Roberts, rather than owning up to the challenges, has chosen to complain haughtily about the Court’s critics, asserting that “simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court.” As I put it in January, “Never mind that at least three recently installed members of the court—Justices Barrett, Kavanaugh and Gorsuch—lied about their acceptance of precedents like Roe v. Wade in their quest to gain lifetime appointments.”

And now never mind that Justices Thomas and Alito have shown that the appearance of impropriety, or worse, is no reason to question their ethics or honor. This is just the way Leonard Leo, who helped Trump choose his Supreme Court nominees, wants it. After all, he and his fellow billionaires have had a country to rule; now Leo and The Federalist Society are drawing on a $1.6 billion nest egg from a single donor to do just that.

The arrogance of the oligarchs is not just a matter of attitude and ethics, of course. Beyond the methodical effort to overturn Roe last year, the hostility toward the Voting Rights Act (intended to ensure the equal right to vote) and embrace of Citizens United illustrate the self-serving goals that lead to concentrated power. In 2013, Justice Antonin Scalia called Congress’s reauthorization of the Voting Rights Act “the perpetuation of a racial entitlement,” causing The Washington Post to note that Scalia is “really worried” whether the act “is fair to white people.” That same year, Scalia and four other justices (including Clarence Thomas) swept away a key provision of the Voting Rights Act in its Shelby County decision.

With the Citizens United ruling in 2010, the five-justice majority demonstrated its desire to end criminal corruption laws, and particularly decades-old limits on corporations’ ability to provide unlimited spending on preferred political candidates. As the Times explained it, “The government’s legitimate interest in fighting corruption, the court held, is limited to direct quid pro quo deals, in which a public official makes a specific commitment to act in exchange for something of value. The appearance of potentially improper influence or access is not enough.”

Did they not know this would open the spending floodgates? Did the majority not care about the ruling’s impact on American democracy? As Justice John Paul Stevens observed in his dissent, “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.” Stevens also argued for the legitimate public interest in limiting corporate spending: “Corruption operates along a spectrum, and the majority’s apparent belief that quid pro quo arrangements can be neatly demarcated from other improper influences does not accord with the theory or reality of politics.”

As Randall Eliason, former chief of the fraud and public corruption section at the U.S. Attorney’s Office for the District of Columbia, explains, the behavior of Alito and Thomas (among others) and their public response to it is not surprising. “Over more than two decades, the Supreme Court has gutted laws aimed at fighting corruption and at limiting the ability of the powerful to enrich public officials in a position to advance their interests,” he writes. “As a result, today wealthy individuals and corporations may buy political access and influence with little fear of legal consequences, either for them or for the beneficiaries of their largess. No wonder Justice Thomas apparently thought his behavior was no big deal.”

Yet let’s not assume this trajectory is a given. Yes, as James Pope, a Rutgers University law professor emeritus, explains, the Supreme Court’s conservative majority believe “the Constitution not only permits the rise of concentrated economic power but also shields it against democratic countermeasures.”

But as authors Joseph Fishkin and Wiliam L. Forbath explain in their 2022 book, The Anti-Oligarchy Constitution, there is also a tradition of egalitarianism seen in three constitutional commitments. As Pope summarizes in his review of their book, these are:

“First, to prevent or check concentrations of economic power such as the ‘slave power’ and the Gilded Age trusts; second, to distribute economic opportunities widely so as to foster ‘the mass middle class that is the social and economic base of republican government’; and third, to extend opportunity to all people across lines of race, gender and ‘other invidious group-based distinctions.’ This tradition does not work well unless all three commitments are honored.”

It’s not hard to see how the Republicans are working aggressively to counteract these traditional commitments to further concentrate their power and wealth. Given the Court’s current makeup, it may take an expansion of the number of justices to make a real difference. But it will also take a clear-eyed commitment on the part of Democrats. As Fishkin and Forbath state it in big picture terms, that means

“to prevent an oligarchy from emerging and amassing too much power; to preserve a broad and open middle class as counterweight against oligarchy and bulwark of democratic life; and to include everyone not just those privileged by race or sex in a democracy of opportunity that is broad enough to unite us all.”

That said, I suspect nearly many if not most of you who read America, America worry that it’s either too late to achieve this or that the task is too overwhelming. But James Pope simplifies the authors’ argument: “If today’s liberals want to reverse this shift…they need to fight for such anti-oligarchy staples as antitrust laws, workers’ rights and progressive taxation as constitutional imperatives alongside racial and gender justice.”

Sounds like a plan for an inclusive, more equitable—indeed democratic—future.

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