When I was a kid in Pen­n­syl­va­nia, I le­ar­ned in ele­men­ta­ry school about this tall guy na­med Ab­ra­ham Lin­coln who grew up in a ru­ral log ca­bin and edu­ca­ted him­self by re­a­ding books at night by cand­le­light. He la­ter be­ca­me Pre­si­dent of the Uni­ted Sta­tes and held the count­ry to­get­her in a ci­vil war that star­ted from his doing what was right when he en­ded sla­ve­ry.

He sho­wed us that Ame­ri­ca is a land of op­por­tu­ni­ty where kids like me could do the right thing and be re­war­ded, per­haps even be­co­me the Pre­si­dent. We were taught that Ame­ri­can po­li­ti­ci­ans like Pre­si­dent Lin­coln were elec­ted to go to Was­hing­ton to do great things, like Ho­nest Abe did.

Does Washington still provide the opportunity to inspire kids today?

No. Was­hing­ton no­wa­da­ys is where op­por­tu­ni­ties for good deeds are squ­an­de­red and crass op­por­tu­nism is re­war­ded. Here are some examp­les from the past few weeks alo­ne.

One mem­ber of Cong­ress is in the news dai­ly for her prai­se of the Ja­nu­a­ry 6th U.S. Ca­pi­tol ri­o­ters as pat­ri­ots, her sup­port for more guns and less gun cont­rol des­pi­te rou­ti­ne mass shoo­tings, her flat­te­ry of a le­a­ker of mi­li­ta­ry sec­rets as a hero rat­her than a trai­tor and her sup­port for Rus­sia ins­te­ad of Uk­rai­ne. Rat­her than being vi­li­fied, she has been re­ap­poin­ted to the Cong­res­si­o­nal Ho­me­land Se­cu­ri­ty Com­mit­tee. That me­ans her re­ward for gros­s­ly dis­tor­ting in­for­ma­ti­on was to give her even more in­for­ma­ti­on to mis­rep­re­sent, inc­lu­ding high­ly sen­si­ti­ve clas­si­fied in­for­ma­ti­on that can’t be de­ba­ted pub­lic­ly be­cau­se it’s sec­ret.

Anot­her Cong­res­s­man is in­ter­fe­ring with cri­mi­nal pro­se­cu­ti­ons in New York state courts by hol­ding of­fi­ci­al he­a­rings in Man­hat­tan to try to show that New York’s go­vern­ment should spend mo­ney pro­se­cu­ting more se­ri­ous cri­mi­nals ins­te­ad of his be­lo­ved hero Do­nald Trump. To the Cong­res­s­man’s em­bar­ras­s­ment, his cir­cus-like si­des­how found less vi­o­lent crime in New York City than in the area of Ohio where he was elec­ted or in Trump’s Flo­ri­da neigh­bor­hood.

The ye­ar 2022 saw 78 ho­mi­ci­des in Man­hat­tan out of 1.6 mil­li­on pe­op­le (a drop of 15 per­cent from the ye­ar be­fo­re). By com­pa­ri­son, Trump’s cur­rent home coun­ty had 96 of its 1.5 mil­li­on re­si­dents kil­led while 139 were kil­led in Co­lum­bus, Ohio, a city with a po­pu­la­ti­on of less than a mil­li­on pe­op­le. The Cong­res­s­man was ne­vert­he­less re­war­ded by right-wing me­dia ex­to­ling his bo­gus con­cern about real cri­mes and, of cour­se, by faw­ning prai­se from Mr. Trump.

Anot­her one is not yet in Was­hing­ton, but he may soon ar­ri­ve. He’s the Go­ver­nor of Flo­ri­da who is busy ban­ning books, rest­ric­ting te­ac­hing in schools, tramp­ling the rights of any­o­ne who gen­der iden­ti­fies in any way that dif­fers from what he li­kes and pu­nis­hing com­pa­nies like Dis­ney for al­lo­wing emp­lo­yees to exer­ci­se their free speech rights to di­sag­ree with him. He al­so ran­dom­ly sends mig­rants and re­fu­gees via bu­ses and pla­nes to ot­her U.S. sta­tes wit­hout any ad­van­ce war­ning or sup­port like clot­hing, food or wa­ter. He's been re­war­ded in many pol­ls by be­co­ming the le­a­ding Re­pub­li­can par­ty can­di­da­te for Pre­si­dent in 2024 and in some pol­ls as li­ke­ly to pre­vail over Pre­si­dent Bi­den.

All of them are Re­pub­li­cans, but De­moc­rats en­ga­ge in equ­al­ly mind­less op­por­tu­nism too. Se­ve­ral De­moc­rats have sug­ges­ted that the res­pon­se to any law en­for­ce­ment’s over­re­ac­hing and cor­rup­ti­on should be to de­fund the po­li­ce. Ot­hers have spon­so­red lo­cal le­gis­la­ti­on to pay mil­li­ons of dol­lars in re­pa­ra­ti­ons to pe­op­le for no re­a­son ot­her than their ha­ving black skin ins­te­ad of white skin, with lit­t­le re­gard for skin co­lors that al­so dif­fer from white such as brown, red or yel­low. These are real pro­po­sals for cash pa­y­ments in pla­ces where they can help to win elec­ti­ons.

Their main ef­fect, ho­we­ver, has been to alie­na­te the vast ma­jo­ri­ty of all vo­ters and to pro­vi­de am­mu­ni­ti­on for op­po­nents who port­ray such ide­as as ri­di­cu­lous­ly out of touch with re­a­li­ty. Ot­her De­moc­rats must now choo­se whet­her to open­ly re­ject such ext­re­me ide­as or risk their par­ty lo­sing elec­ti­ons in pla­ces far from the nar­row circ­les where such ini­ti­a­ti­ves star­ted.

Opportunity can be hard to distinguish from opportunism but there’s a difference

These are on­ly a few examp­les of how mo­dern po­li­tics in Was­hing­ton and el­sew­he­re in Ame­ri­ca plays out in real life. They don’t help eit­her po­li­ti­cal par­ty or ins­pi­re any­o­ne. They are on­ly sen­se­less acts by op­por­tu­nis­tic con ar­tists who have no ac­cep­tab­le et­hics or plans bey­ond pub­li­ci­ty for them­sel­ves.

As dis­cou­ra­ging as these ins­tan­ces are, it’s not right to cri­ti­ci­ze eve­ry­o­ne who uses a va­lid op­por­tu­ni­ty to make a le­gi­ti­ma­te point. For ins­tan­ce, De­moc­ra­tic Rep­re­sen­ta­ti­ve Ale­xand­ria Oca­sio-Cor­tez has pro­po­sed imp­ro­ve­ments to Ame­ri­can courts in res­pon­se to re­cent events.

She ur­ged the Bi­den ad­mi­nist­ra­ti­on to ig­no­re a court or­der that over­tur­ned a go­vern­ment agen­cy ap­p­ro­val of a drug used to ini­ti­a­te abor­ti­ons in pla­ces where abor­ti­on re­mains le­gal. She ar­gu­ed that the jud­ge’s or­der rep­la­ced scien­ti­fi­cal­ly ba­sed ex­pert de­ci­si­ons with his own per­so­nal views about the mo­ra­li­ty of abor­ti­on, so it should be ig­no­red as in­va­lid. It was just one de­ci­si­on by a lo­wer court jud­ge, but it’s li­ke­ly to be ap­pe­a­led and even­tu­al­ly be de­ci­ded by the Uni­ted Sta­tes Sup­re­me Court.

Is it proper for a member of Congress to challenge the validity a federal judge’s decision?

In the Ame­ri­can sys­tem, go­vern­ment is di­vi­ded in­to three parts or branc­hes: le­gis­la­ti­ve (the Cong­ress), exe­cu­ti­ve (the Pre­si­dent and his ad­mi­nist­ra­ti­on) and ju­di­ci­al (the courts with the U.S. Sup­re­me Court being the hig­hest one). Each of them checks and ba­lan­ces the ot­hers, so they must re­main se­pa­ra­te and res­pect each ot­her. One branch of go­vern­ment shouldn’t just ig­no­re what anot­her branch of go­vern­ment does. Courts rule on dis­pu­tes bet­ween the dif­fe­rent parts of go­vern­ment and no one should ig­no­re what a court de­ci­des, eit­her be­fo­re or af­ter it’s been ru­led on by the Sup­re­me Court.

Rep­re­sen­ta­ti­ve Oca­sio-Cor­tez’s sug­ges­ti­on that the jud­ge’s abor­ti­on pill de­ci­si­on should be ig­no­red was cri­ti­ci­zed as vi­o­la­ting the ba­lan­ce of po­wer and al­so as his­to­ri­cal­ly hy­poc­ri­ti­cal for a De­moc­rat. As the Wall Street Jour­nal poin­ted out, “Sout­hern De­moc­rats cal­led for ‘mas­si­ve re­sis­tan­ce’ to le­gal or­ders in the 1950s af­ter the Sup­re­me Court’s school de­seg­re­ga­ti­on ru­ling in Brown v. Bo­ard of Edu­ca­ti­on.” They did so in the mis­gui­ded be­lief that their ra­cist views were su­pe­ri­or to any court de­ci­si­ons. In time, schools were law­ful­ly de­seg­re­ga­ted.

Alt­hough that oc­cur­red in the 1950s, the Wall Street Jour­nal wrote that ig­no­ring the 2023 de­ci­si­on about abor­ti­on pil­ls would be “anot­her gi­ant step to­ward law­less po­li­tics.” Rep­re­sen­ta­ti­ve Oca­sio-Cor­tez was said to be op­por­tu­nis­ti­cal­ly bas­hing any court de­ci­si­on she didn’t ag­ree with.

Her res­pon­se was that things are dif­fe­rent now be­cau­se the Sup­re­me Court of 2023 com­pa­red to the 1950’s “has de­vol­ved in­to a high­ly po­li­ti­ci­zed en­ti­ty that is ra­pid­ly de­le­gi­ti­mi­zing. In our sys­tem of checks and ba­lan­ces … [the Court’s] … be­ha­vi­or war­rants a check from the le­gis­la­ti­ve and exe­cu­ti­ve branc­hes.”

She poin­ted out that cur­rent cir­cums­tan­ces cre­a­te an op­por­tu­ni­ty for a se­ri­ous dis­cus­si­on about Ame­ri­can courts and the exer­ci­se of their po­wers, with an emp­ha­sis on whet­her the courts are ac­ting le­gal­ly or po­li­ti­cal­ly at all le­vels from the Sup­re­me Court down­ward. She al­so an­noun­ced that of­fi­ci­al pro­cee­dings should be­gin to de­ter­mi­ne if one par­ti­cu­lar mem­ber of the Sup­re­me Court should be im­pe­ac­hed (re­mo­ved from his li­fe­ti­me ap­point­ment).

Like it or not, she is right. It’s wrong to ac­cu­se her of op­por­tu­nism. She is ins­te­ad ta­king a va­lid op­por­tu­ni­ty to il­lust­ra­te why a se­ri­ous pub­lic dis­cus­si­on is nee­ded about courts in Ame­ri­ca to­day.

The opportunity exists now to examine the Supreme Court and other American courts

Let’s set asi­de the un­po­pu­la­ri­ty of re­cent court de­ci­si­ons (for examp­le, about abor­ti­on and cam­paign fun­ding that rein­for­ces the abi­li­ty of we­alt­hy Ame­ri­cans to cont­rol po­li­ti­ci­ans) even though a ma­jo­ri­ty of Ame­ri­cans di­sag­ree with those ru­lings and qu­es­ti­on the le­gi­ti­ma­cy of the le­gal re­a­so­ning be­hind them. Let’s fo­cus on­ly on the ba­sic ap­pe­a­ran­ce of fair­ness and a lack of bias at the hig­hest Ame­ri­can Court, the Uni­ted Sta­tes Sup­re­me Court.

One mem­ber of the court, Jus­ti­ce Cla­ren­ce Tho­mas, was ap­poin­ted by a Re­pub­li­can Pre­si­dent in 1991. His 30+ ye­ars of con­ser­va­ti­ve le­a­ning de­ci­si­ons at the court have ge­ne­ral­ly be­ne­fit­ted af­f­lu­ent Ame­ri­cans, as ex­pec­ted. But it was on­ly re­cent­ly re­ve­a­led that he has rou­ti­ne­ly fai­led to disc­lo­se ex­pen­si­ve gifts and tra­vel on pri­va­te jets to lu­xu­ry re­sort va­ca­ti­ons for both him and his wife, paid in full by a rich Re­pub­li­can do­nor, to whom he al­so sold pro­per­ty (that was al­so not disc­lo­sed). All of this hap­pe­ned while he had his job as an ac­ti­ve Sup­re­me Court Jus­ti­ce, which he still does.

Jus­ti­ce Tho­mas desc­ri­bed the we­alt­hy be­ne­fac­tor and his wife as close per­so­nal friends and re­sis­ted any imp­li­ca­ti­on that he did anyt­hing wrong even though his con­duct would have vi­o­la­ted laws that ap­p­ly to lo­wer-le­vel jud­ges. He clai­med that he ac­ted le­gal­ly un­der a va­gue per­so­nal hos­pi­ta­li­ty exemp­ti­on to disc­lo­su­re. He poin­ted out that no ru­les pre­ven­ted him from en­jo­ying perks far bey­ond wha­te­ver was pos­sib­le from his in­co­me as a Sup­re­me Court Jus­ti­ce and his wife’s in­co­me as a la­wy­er.

Most Ame­ri­cans think that ac­cep­ting the job of a Sup­re­me Court Jus­ti­ce me­ans gi­ving up the choi­ce to live a la­vish li­fes­ty­le and to ins­te­ad re­main even­han­ded, to be ab­le to un­ders­tand the ex­pe­rien­ces of eve­ry­day ci­ti­zens af­fec­ted by the court’s ru­lings. Spou­ses of Sup­re­me Court Jus­ti­ces ge­ne­ral­ly stay away from po­li­tics for the same re­a­sons – to main­tain a sen­se of fair­ness and im­par­ti­a­li­ty.

It tur­ned out that the Sup­re­me Court does not have in place any code of con­duct or ot­her re­gu­la­ti­ons that ap­p­ly to Jus­ti­ce Tho­mas and his col­le­a­gu­es on the court. Ru­les have long exis­ted for eve­ry­o­ne el­se in the U.S. go­vern­ment, but not for them. Jus­ti­ce Tho­mas op­por­tu­nis­ti­cal­ly took ad­van­ta­ge of that loop­ho­le and didn’t bot­her to tell any­o­ne.

He ac­cep­ted, or per­haps even ex­pec­ted, that he could be tre­a­ted like ro­yal­ty. He see­med to think that the lack of spe­ci­fic ru­les me­ant he could ig­no­re the ap­pe­a­ran­ce that he was ta­king bri­bes or, at a mi­ni­mum, that he had a per­so­nal conf­lict of in­te­rest that would tempt him to rule in ways that be­ne­fit­ted his mo­ney­ed friends and en­cou­ra­ged them to dole out more free “hos­pi­ta­li­ty” to Jus­ti­ce Tho­mas and his wife.

In ad­di­ti­on, Jus­ti­ce Tho­mas’ wife was re­cent­ly shown to have been deep­ly and per­so­nal­ly in­vol­ved in the frau­du­lent ef­forts to keep for­mer Pre­si­dent Trump in po­wer af­ter his elec­ti­on de­fe­at. Writ­ten mes­sa­ges bet­ween her and key Trump ope­ra­ti­ves de­monst­ra­ted that she had lit­t­le re­gard for U.S. elec­ti­on in­teg­ri­ty. Jus­ti­ce Tho­mas ap­pa­rent­ly thinks that Ame­ri­cans will be­lie­ve that he ne­ver had a sing­le din­ner tab­le con­ver­sa­ti­on with his wife about the hours and days she spent wor­king to over­turn the elec­ti­on in qu­es­ti­o­nab­le and per­haps il­le­gal ways. His de­ni­als and exp­la­na­ti­ons are pre­pos­te­rous.

As a re­sult, an in­qui­ry about the le­gi­ti­ma­cy of the cur­rent Uni­ted Sta­tes Sup­re­me Court is jus­ti­fied. Rep­re­sen­ta­ti­ve Oca­sio-Cor­tez and ot­hers who ag­ree with her are not en­ga­ged in op­por­tu­nism. They ins­te­ad rai­se im­por­tant con­cerns by sei­zing the cur­rent op­por­tu­ni­ty for Ame­ri­cans to open their ey­es to very real prob­lems at the Sup­re­me Court.

The exer­ci­se of their ob­li­ga­ti­ons as mem­bers of Cong­ress to be­gin such dis­cus­si­ons should be sup­por­ted. That will be an op­por­tu­ni­ty to make Uni­ted Sta­tes courts le­gi­ti­ma­te (or not) to Ame­ri­cans and the rest of the world.


Tom A. Lip­po is a Fin­nish-spe­a­king Ame­ri­can la­wy­er. Edu­ca­ted at Ya­le, the Uni­ver­si­ty of Jy­väs­ky­lä and Stan­ford Law School, he is the foun­der of FACT LAW, an in­ter­na­ti­o­nal law firm es­tab­lis­hed in 1985. FACT is the first law firm with of­fi­ces in both Fin­land and the Uni­ted Sta­tes. Tom has been a la­wy­er in Was­hing­ton, DC ba­sed on Ca­pi­tol Hill for over 40 ye­ars.