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.