© Josh Sager – September 2013

The current US Supreme Court is among the most controversial in our country’s history. The Roberts Court has handed down several 5-4 decisions along partisan lines (with the right wing block of the court winning) which have drastically altered the course of our country. These decisions have flown in the face of precedent and have been unpopular enough to decrease public confidence in the court to what may be a modern low (34% according to Gallup). Here are a few examples of such partisan rulings:

Bush v. Gore: In 2000, the Supreme Court stopped an election recount and, by a 5-4 partisan vote, gave Bush the presidency despite the fact that he lost the election. The court even recognized how extreme a precedent this decision would set, thus it expressly said that this was a unique case and that their decision in the Bush v. Gore case should not be precedent (ironically, this type of caveat to avoid setting a precedent is also unprecedented).

District of Columbia v. Heller: In 2008, the Supreme Court decided by a partisan 5-4 vote that gun ownership is, in fact, an individual right for the first time in our country’s history. Before this ruling, this interpretation of the 2 nd Amendment was completely unprecedented under the law (except to the NRA).

Amendment was completely unprecedented under the law (except to the NRA). Citizens United v. FEC: In 2010, the Supreme Court decided by a 5-4 partisan vote that corporations have the same rights as people in regard to political speech (IE. monetary donations). This decision is unprecedented under all previous interpretations of the law and was the opening of the floodgates for political spending and corruption.

Holder v. Shelby County: In 2013, the Supreme Court decided with a 5-4 partisan vote that section 4 of the Voting Rights Act was unconstitutional. This decision was based upon the legal concept of equal sovereignty between the states—a legal concept that had not existed before it was used to decide this case.

While it is inevitable that people will disagree on interpretations of the Constitution, this Supreme Court has gone a step further; the conservative block of the court has regularly overturned precedent and handed down partisan rulings and rulings which support interests who have given donations to individual justices. In a space of just over a decade, the right wing block of the court has fundamentally degraded democracy (installing an unelected president, legalizing bribery, and setting back voter protections by 50 years) and done everything in their power to push a political agenda.

Unfortunately, the only opinions which matter on issues of interpreting the Constitution are those of Supreme Court justices, and there is no easy way to override stupid or unpopular decisions (ex. Dred Scott). That said, there is a significant amount of evidence that members of the current Supreme Court are not just using an unprecedented interpretation of the Constitution, but are openly corrupt.

Justices Thomas and Scalia have taken expensive gifts (Money, vacations, and material possessions) from groups appearing in front of their court. These “gifts” appear to be the quid in a quid pro quo, as these groups have virtually always received rulings in their favor from the Justices who they gave “gifts” to. While the Supreme Court is not bound by the same rules that other Federal judges are (The Judicial Code of Ethics), this does not mean that their actions should be allowed to continue without legal consequences.

While it is very difficult to compel the resignation of a Supreme Court Justice and even harder to impeach them, I believe that criminal sanctions under the federal RICO Act should be used to force corrupt Supreme Court Justices to resign their post. This extreme step should not be used due to partisan differences, but rather in response to an un-accountable Supreme Court Justice disregarding ethics and selling their vote.

Unfortunately for the integrity of our country’s judicial branch, I believe Supreme Court Justices Thomas and Scalia to be guilty of violations of the RICO Act. Justice Thomas has openly accepted material gifts from groups/individuals that have pending cases (or have filed amicus briefs) in the Supreme Court while justices Scalia, Alito and Thomas have accepted paid vacations and speaking fees from conservative groups (paid vacations can be considered a bribe, as they have material value) which have presented cases in front of the Supreme Court.

While Thomas, Scalia and Alito have all shown a disregard for judicial ethics which could be construed as corruption, Justice Thomas is clearly the worst offender—he has demonstrated a shocking lack of judicial ethics, both in his acceptance of “gifts” from people with interests in his court and his refusals to recuse himself from cases, even when there were glaring conflicts of interest.

Thomas has regularly disregarded his ethical duty to recuse himself, including in several very consequential cases. Of these cases, the most important was Citizens United v. FEC, which opened the doors to corruption in politics through giving corporations speech rights. The group Citizens United spent over $100,000 in supporting Thomas’s appointment to the Supreme Court and had gave hundreds of thousands of dollars to his wife’s lobbying organization while the case was in front of the court.

The use of the RICO Act to prosecute corrupt judges, who take money for decisions, is not unprecedented but this would be the first time a judge as powerful as a Supreme Justice was targeted. In 2011, Pennsylvania judge Mark Ciavarella was convicted of racketeering for the infamous “Kids for Cash” scam, in which he took money from prisons for sentencing children to jail time.

Requirements for a RICO Case

Title 18 U.S.C. §§ 1961-1968 of the US code—also referred to as the “Racketeer Influenced and Corrupt Organizations Act” (RICO)—is used to criminally prosecute those who have ordered, or are otherwise indirectly related to, certain criminal acts – organized crime and corrupt enterprises are the most common targets of this statute, but it has been used to prosecute many other types of corrupt organization.

Under the RICO Act, an individual who is charged with certain crimes (Ex. money laundering, extortion, etc.), as a part of a criminal conspiracy, can not only have their assets frozen (or seized, if convicted), but can be liable for massive criminal and civil damages. In order for a RICO prosecution to be sustained, several criteria must be met:

The first criteria to proving a RICO case against an individual is showing that they have committed at least two of thirty-five federal crimes in a period of no longer than ten years. Among the federal laws that compose RICO cases, there are several which could potentially be applied to corrupt members of the Supreme Court: honest service fraud, tax non-compliance, and obstruction of justice

Honest service fraud (18 USC § 1346) is defined ad fraud which is intended to deprive a citizen of intangible goods, such as the honest services of the law. Somebody who is beholden to the public is guilty of honest service fraud if they knowingly neglect their constituents’ interests in favor of the interests of a third party which is paying the public official. This statute is most commonly used to prosecute corrupt politicians—who deprive their constituents of the “honest services” of their elected officials by selling their votes.

In previous RICO prosecutions, it has been upheld that a judge who accepts a bribe for consideration in a case, is guilty of honest service fraud. While the Supreme Court Justices are not bound by the judicial code of ethics for other federal judges, they are not immune to prosecution for bribery. If it can be proven that a Justice has taken money in exchange for a ruling, they are legally liable.

Tax non-compliance (more commonly known as tax evasion) is the intentional avoidance of taxes owed to the state or federal government through illegal means. If income is not reported, undervalued or otherwise hidden, then the taxes paid to the government are lower than they should be, and the tax payer is guilty of tax evasion.

As with honest service fraud, both politicians and judges have been found liable for tax evasion when they accept bribes. Bribes are by definition illegal, thus taxes are rarely paid on them; the evasion of taxes on profit from illegal activities, whether drugs or bribery, has been one of the most common charges levied against corrupt politicians and organized crime figures.

Those on the Supreme Court receive a salary, which they pay taxes on, but, as detailed above, some Justices also receive “gifts” that can be considered undeclared income. Even if the “gifts” are not legally considered bribes, unless they are reported for taxation (and it has been shown that many of these “gifts” have not been reported until years after), this constitutes tax evasion.

Obstruction of justice is a charge levied against those who attempt to prevent legal authorities from doing their job—this obstruction can manifest in the form of bribery, official corruption, threatening, or even murder. If a judge rules in favor of a party in an attempt to prevent the law from being applied and in exchange for a bribe, this is considered obstruction of justice through official malfeasance. Situations where this would apply to a Supreme Court Justice would likely be in cases where civil liability or campaign finance rules were restricted.

For example, if a Justice is found to have sold their vote during the Citizen’s United V. FCC, they would be guilty of “obstruction of justice” because they would have prevented a regulatory authority from performing its legal duty. Out of all possible, applicable, charges to sustain a RICO Act indictment of a Supreme Court Justice, this is likely the hardest to prove because intent to obstruct must be proven; unlike with accepting a bribe or evading taxes, where the act itself proves the crime, the charge of obstruction of justice must prove intent to subvert the law by the Justice, not simply the fact that the law was subverted.

Once a federal prosecutor constructs a RICO case against a Supreme Court Justice by proving that the Justice has committed at least two of the requisite crimes, a federal grand jury can approve an indictment of the Justice and freeze their personal funds. The products of an illegal enterprise are frozen even before conviction, thus pressure could be applied to the Justice even before conviction. As the indicted Justice is accused of official corruption, all funds and property gained through these actions (Salary and Bribes) are liable to be frozen until their acquittal, or seizure if convicted.

While the Justice charged under the RICO act cannot be forced to resign their post, the freezing of their assets would impoverish them and would likely lead to a resignation if it continued for a significant period; the corrupt justices would essentially be forced to choose between their position on the court and their material possessions (as these Justices have already sacrificed their integrity for money, it is unlikely that they would stay on the court in the face of losing all of their property).

If convicted, the corrupt Justice would suffer immense legal ramifications. They would be liable for huge civil damages, as well as twenty years per count of racketeering activity (in addition to the sentences of the requisite crimes) and would forfeit most of their material possessions. The convicted Justice would not be forced to relinquish their position, but would forfeit all income and have all future “gifts” seized as profits of an illegal act – it is also likely that this Justice would be impeached, if only to mitigate the scandal and preserve the integrity of the Supreme Court.

Ultimately, I believe it unlikely that a Supreme Court Justice would actually be charged with the RICO Act—if only due to their immense power—but the fact remains that it is an option with several of the current Supreme Justices. I do not support the specious use of this legal tactic, regardless of whether or not I agree with the Justice in question, and would only support this tactic in the case of a legitimately corrupt Justice (ex. Both Thomas and Roberts are right wingers who I disagree with, but I would only support this for the clearly corrupt Thomas).