Beginning this morning, the Supreme Court will hear two cases that could recognize the right of everyone, straight or gay, to marry the person they love. The first concerns California’s anti-gay Proposition 8, and could potentially extend the right to marry to same-sex couples in all fifty states. The second challenges the federal Defense of Marriage Act (DOMA), and could end the federal government’s practice of denying equal benefits to couples who are legally married under state law. Here is everything you need to know to understand these cases:

How The Court Could Rule

– A Broad Decision: The best, and most obvious, decision would be for the justices to follow the Constitution and the clear command of precedent and extend marriage equality to all fifty states. It is fairly likely, however, that at least one member of the majority will be too cautious to require Alabama to follow the Constitution, even if they are prepared to order California to do so. If the justices punt on the Alabama question, the important question is whether they hold that anti-gay laws are subject to “heightened scrutiny,” a skeptical kind of constitutional analysis that will make it very difficult for anti-gay discrimination to withstand court review in the future.

— A One-Off: The Ninth Circuit proposed a way to strike down Prop 8 while leaving most other states free to engage in marriage discrimination (the court said that voters were not permitted to withdraw the right to marry once it had been established by the state Supreme Court). The logic of the ruling was thus confined to California. Similarly, two of the Court’s most important gay rights opinions relied on very narrow reasoning that advanced equality only incrementally. It is possible the justices will repeat this performance.

– Jurisdictional Dodges: In both cases, the Court could potentially rule that it lacks jurisdiction to hear the case, a decision that would cast a cloud of uncertainty over the rights of gay couples.

– A Stealth Attack: Several prominent conservatives are pushing a dangerous legal theory that would strike down DOMA on states’ rights grounds, and potentially endanger Social Security, veterans benefits and progressive taxation in the process.

– A Loss: Ultimately, however, it is important to remember that this is a severely conservative Court, and even so-called swing vote Justice Kennedy is a severely conservative justice. Equality could lose.

What To Expect From The Justices

– The Democratic Appointees: It would be very surprising if any of the Court’s four Democrats vote to uphold discrimination. While some commentators have noted Justice Ginsburg’s critical statements about Roe v. Wade — “It’s not that the judgment was wrong, but it moved too far, too fast” — this statement suggests Ginsburg might take an incremental approach, not that she will vote to uphold discrimination. Chance of pro-equality vote: more than 90 percent.

– Justice Kennedy: Kennedy is the author of two narrowly reasoned, but very important cases upholding gay rights. His record on gay rights is not perfect, however. Kennedy cast the key vote holding that the Boy Scouts have a constitutional right to engage in anti-gay discrimination, and he’s behaved less and less like a moderate swing vote and more and more like a hardline conservative in recent years. His vote for equality is likely, but not certain, and is more likely than not to rest on very narrow reasoning. Chance of pro-equality vote: 60-70 percent.

– Justice Thomas: Thomas is the Court’s most conservative member, but he once called Texas’ “sodomy” ban an “uncommonly silly” law, and he cares a great deal shrinking federal power until it is small enough to be drowned in a bathtub. Indeed, Thomas believes federal child labor laws and the nationwide ban on whites-only lunch counters are unconstitutional on states’ rights grounds. For this reason, it is possible he will be attracted to the claim that DOMA violates states’ rights. There’s no chance he’ll vote to strike Prop 8, however. Chance of pro-equality vote: 20 percent on DOMA, 0 percent on Prop 8.

– Chief Justice Roberts: Roberts has a lesbian cousin who will attend the marriage arguments as his personal guest, and he once did pro bono work on behalf of gay rights activists when he was an attorney in private practice. Nevertheless, Roberts remains very conservative and has a long record of criticizing decisions that read the Constitution’s promise of equality broadly. If Roberts does vote with a pro-equality majority, it is just as likely that he will do so in order to wrest control of the opinion and narrow it as he would to extend the blessings of liberty to gay Americans. Chance of pro-equality vote: 10 percent.

– Justice Alito: Alito is probably the toughest conservative questioner on the Court, and he has emerged as a strong advocate for whatever outcome conservatives prefer. Chance of pro-equality vote: less than one percent.

– Justice Scalia: In past opinions, Scalia compared homosexuality to murder, drug addiction, bestiality, incest and child pornography. Chance of pro-equality vote: 0 percent. Chance his opinion will accuse pro-equality justices of kowtowing to the “homosexual agenda”: 99.99 percent.

Surging Support For Marriage Equality

– Marriage Equality Has Strong Bipartisan Support: Retired Judge Vaughn Walker, the first judge to strike down Prop 8, is a Republican appointed to the bench by President George H.W. Bush. Three of the court of appeals judges that voted to declare DOMA unconstitutional are Republicans. 131 top Republicans, including six former Republican governors, filed a brief supporting marriage equality.

– The American People Support Marriage Equality: Fifty-eight percent of Americans believe same-sex couples should be allowed to marry. Among adults under 30, support is at 81 percent.

The Constitution guarantees “the equal protection of the laws” — and that includes same-sex couples. As the Supreme Court has explained, this guarantee is most robust when applied to groups that experienced a “‘history of purposeful unequal treatment‘ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.” LGBT Americans undoubtedly fit this description, and thus neither DOMA nor Prop 8 can stand.

The "second-best option" for the Roberts children

When President Bush announced his decision to nominate future-Chief Justice John Roberts to the Supreme Court, his wife Jane stood nearby holding the hands of two beautiful children — Jack and Josie Roberts. Both of these children were born in Ireland, and later adopted by the future Chief Justice and his wife. Justice Clarence Thomas also has an adopted son, his grandnephew Mark Martin, Jr., who Thomas adopted when Martin was six.

So it is a bit hard to understand why a top anti-gay advocate decided to insult adoptive parents in general — and Chief Justice Roberts in particular — as the justices are preparing to hear two cases that will decide whether same-sex couples will enjoy the same right to marry as all other Americans. According to John Eastman, a law professor and chair of the anti-gay National Organization for Marriage, Roberts and Thomas’ adopted children are only growing up in the “second-best” environment:

The justices also are not immune to considering how they might be affected by the course one side or the other is advocating in a dispute before them. . . . [Johns Hopkins Sociology Professor Andrew] Cherlin, who does not follow the high court especially closely, wondered whether the gay marriage cases might take on a similar dynamic. “If justices consider their own family lives in these cases, it may change the way they rule,” he said.

Gay marriage opponents said they are not worried about the votes of Roberts and Thomas.

“You’re looking at what is the best course society wide to get you the optimal result in the widest variety of cases. That often is not open to people in individual cases. Certainly adoption in families headed, like Chief Roberts’ family is, by a heterosexual couple, is by far the second-best option,” said John Eastman, chairman of the National Organization for Marriage. Eastman also teaches law at Chapman University law school in Orange, Calif.

There is nothing “second-best” about the family environment Roberts and Thomas have provided to their adopted children. While many critical things can be said about Justice Thomas — and we have said a lot of them — his decision to adopt his grandnephew is admirable and speaks well of Thomas’ capacity for personal sacrifice:

Neither Thomas nor his wife nor several Savannah sources contacted for this story would discuss the circumstances behind Thomas’ taking custody of Mark. But others say that the situation, while not dire, called for a responsible person to step in quickly. Mark Sr., Thomas’ nephew, had been in prison on cocaine trafficking charges. And Mark Jr.’s mother, Susan, was struggling with her own problems, raising four children, including young Mark Jr., on her own. Thomas believed that the boy would face lifelong trouble if he were not removed from his environment soon, and the parents agreed. “He was paying back his own grandfather by taking care of Mark,” says one friend.

The Roberts’ adoption story is rooted less in family tragedy and more in their devout faith. John and Jane Roberts married late in life — Jane was 42. The Chief Justice and his wife chose not to seek medical treatment that would have enhanced Jane’s ability to conceive because “Catholic doctrine prohibits most forms of fertility treatment,” and instead chose to adopt two children. As with Thomas, there are many critical things that can be said about the Chief Justice, but he is by all accounts very kind in his personal interactions and he and his wife provided their adopted son and daughter with a household where they could thrive. Roberts deserves praise for adopting children, and he certainly does not deserve the aspersions cast upon adopted parents by Professor Eastman.

Eastman is also not the first attorney involved in the marriage cases to suggest adoptive parents are somehow a second-best opinion for children. In his brief on behalf of the House Republicans defending the Defense of Marriage Act, conservative superlawyer Paul Clement claimed that “[b]iological parents have a genetic stake in the success of their children that no one else does.”

Justice Scalia & Senator Kennedy: Kinda the same

Justice Antonin Scalia is easily the Supreme Court’s most strident conservative. He defends torture and finds little wrong with executing the innocent. He once argued that the Constitution does not protect women from gender discrimination (although he’s since backed off this statement somewhat). Scalia compared same-sex attraction to murder. He believes our immigration law should look to antebellum laws excluding “freed blacks” from southern states for guidance. And he spent the much of the Supreme Court arguments on the Affordable Care Act parroting conservative talking points against health reform.

Yet, according to Virginia Attorney General Ken Cuccinelli (R), Scalia’s really just a squishy liberal:

At the annual gathering of the conservative National Review Institute, held at the Omni Shoreham Hotel in Washington, Cuccinelli appeared on a panel discussing the topic, “Does the Constitution Have a Future?” During the session, he criticized President Obama, suggesting the president had a malleable vision of the meaning of sin and of the Constitution.

“And really the way to fight back, given the governmental structure we have, the primary way is to get good judges who don’t accept what is wrong as right after a while,” Cuccinelli said, according to a video clip of the discussion. “Justice Scalia is in this category: ‘Well, we’ve been doing it wrong for a while, so now it’s part of the Constitution.’ I don’t buy that. I don’t buy that. And that needs to be reflected in the judges selected by the president, not this president, but the president generally, and approved by the Senate. They need to take that a lot more seriously than they do.”

To explain this a bit, in the late 19th and early 20th centuries, conservative justices created new, artificial limits on the federal government’s power — such as saying that the Constitution did not permit Congress to regulate manufacturing, mining or agriculture. They then wielded these extra-constitutional limits to strike down basic workplace protections such as child labor laws or laws protecting the right to organize. The Supreme Court abandoned this misreading of the Constitution in the 1930s, and Justice Clarence Thomas is the only member of the current Court who embraces this misreading. Justice Scalia repeatedly refused to join opinions by Thomas pining for the days when manufacturing was considered immune to federal regulation and national child labor laws were considered unconstitutional.

Cuccinelli disagrees with Scalia on this point. He’s claimed that “[w]e want judges who will do nothing but apply the law as it was written and originally understood.” And, in one of his briefs challenging the Affordable Care Act, he tipped his hand to indicate a broader agenda to return to the days when child labor laws were tossed out because they exceeded Congress’ constitutional authority to “regulate commerce.” Cuccinelli’s brief embraces Thomas’ view that “the founding generation distinguished between commerce on the one hand, and manufacturing or agriculture on the other, as distinct things.”

Of course, Cuccinelli’s understanding of the Constitution’s history is dubious at best, but that’s beside the point. The point is that Cuccinelli thinks judges are bound by the founders’ understanding of the Constitution, and he also agrees with Justice Thomas that the founders would not have approved of child labor laws.

And so Justice Scalia is a villain, because he won’t join Thomas’ noble crusade against the most basic labor protections.

One of the few silver linings on the Supreme Court’s election-buying decision in Citizens United was its holding that — although corporations are now free to spend as much money as they want to elect their preferred candidates — such spending could still be subject to disclosure laws so long as those laws bear a “substantial relation” to “‘providing the electorate with information’ about the sources of election-related spending.” The most Republican federal court of appeals in the country just wiped away much of this silver lining, however, striking down a Minnesota law requiring corporations seeking to buy elections to register their political fund and make regular public disclosures of its activities.

In an opinion joined by six of the court’s Republican appointees, the U.S. Court of Appeals for the Eighth Circuit effectively reduced the Supreme Court’s endorsement of disclosure laws into a ban on disclosure rules that corporations might find inconvenient:

Perhaps most onerous is the ongoing reporting requirement. Once initiated, the requirement is potentially perpetual regardless of whether the association ever again makes an independent expenditure. The reporting requirements apparently end only if the association dissolves the political fund. To dissolve the political fund, the association must first settle the political fund’s debts, dispose of its assets valued in excess of $100—including physical assets and credit balances—and file a termination report with the Board. Of course, the association’s constitutional right to speak through independent expenditures dissolves with the political fund. To speak again, the association must initiate the bureaucratic process again.

Under Minnesota’s regulatory regime, an association is compelled to decide whether exercising its constitutional right is worth the time and expense of entering a long-term morass of regulatory red tape.

The plaintiffs in this case were represented by GOP anti-campaign finance crusader James Bopp, who frequently represents anti-abortion and anti-gay groups. One of the likely consequences of Bopp’s victory is that corporate donors seeking to promote an anti-gay ballot initiative seeking to write marriage discrimination into the Minnesota constitution will not be subject to disclosure.

Five judges, including three Republicans, dissented from this expansion of Citizens United. In the Citizens United opinion itself, only Justice Thomas broke with the Court’s endorsement of disclosure laws. Thomas also believes that national child labor laws are unconstitutional.

Part two of ThinkProgress’ profiles of right-wing groups that are taking advantage of the Citizens United ruling to flood the airways with independent attack ads. See Part 1 here.

American Crossroads is an independent expenditure-only Super PAC.

Created in 2010, American Crossroads claims a “deep love for all that America represents – and a deep concern about the direction we are headed in” and says its vision its vision is that “our country is always at its best when its citizens—not self-serving politicians in Washington—are in control of its future.” It has raised more than $40 million already this cycle and spent at least $11.5 million on independent expenditures.

American Crossroads was co-founded by former George W. Bush campaign architect Karl Rove and Mitt Romney campaign adviser and former Republican National Committee Chairman Ed Gillespie. The group’s president, Stephen Law, is a former chief legal officer and general counsel for the U.S. Chamber of Commerce. Mike Duncan, chairman of American Crossroads, is a former Republican National Committee Chairman.

One of the group’s top donors, Crow Holdings, is led by Harlan Crow, who made ethically questionable payments to the wife Justice Clarence Thomas and provided gifts to Thomas himself

Watch a sample American Crossroads ad:

Affiliates:

• Crossroads GPS, a 501(c)(4) organization
• Crossroads Generation, a Super PAC aimed at younger voters

YouTube channel: http://www.youtube.com/user/AmericanCrossroads
Twitter feed: https://twitter.com/americanxroads

Graphics by Adam Peck. Christina Lewis and Ellie Sandmeyer contributed to this report

The biggest revelation in CBS News reporter Jan Crawford’s piece on the Supreme Court’s health care deliberations isn’t that Chief Justice John Roberts originally voted to strike down the Affordable Care Act and then changed his mind — Crawford merely confirmed what many people already expected based on evidence in the opinions themselves. Rather, the biggest revelation is that fact that, in order for her piece to exist at all, someone inside the Court must have leaked confidential information to her.

Yesterday, the New York Times‘ Adam Liptak strongly implied that the leak could be Justice Clarence Thomas:

[T]he possibility that conservatives had victory within reach only to lose it seemed to infuriate some of them. The CBS News report, attributed to two sources with “specific knowledge of the deliberations,” appeared to give voice to the frustrations of people associated with the court’s conservative wing. It was written by Jan Crawford, whose 2007 book, “Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court,” was warmly received by conservatives.

In a 2009 interview on C-Span, Justice Thomas singled her out as a favorite reporter. “There are wonderful people out here who do a good job — do a fantastic job — like Jan Greenburg,” Justice Thomas said, referring to Ms. Crawford by her married name at the time.

Watch Thomas praise Crawford:

Thomas’ affection for Crawford is mutual, and Crawford has spent years defending Thomas against his critics. At times, these defenses have been thoughtful and compelling, such as when she shot down the ridiculous idea that Thomas is merely a lapdog for his less conservative colleague Justice Antonin Scalia, or when she defended Thomas’ wife’s Ginni’s right to have her own career regardless of what her husband does for a living. At other times, they have been much less thoughtful, such as when Crawford accused Senate Majority Leader Harry Reid (D-NV) of racism for criticizing Thomas. Crawford has also conducted high-profile interviews of Thomas in the past.

None of this, of course, proves conclusively that Thomas is one of Crawford’s two sources. But it does demonstrate that the two of them have a strong working relationship based on mutual admiration for each other. If Thomas were looking to leak confidential information to a member of the Supreme Court press, it is likely that he would choose the one reporter he has publicly revealed to be his favorite. The fact that that reporter is a well-regarded conservative journalist who also works for a high profile outlet is gravy.

If Thomas is the leak, that would be a shocking escalation from the justices normal tactics — and one which could have lasting consequences for the future. Appellate courts function because of the assumption that their members can openly discuss their thoughts and misgivings about individual cases without fear that those discussions will later be used to embarrass them. If that assumption no longer prevails in Supreme Court conferences, the Court will morph into a far less deliberative, more factional institution.

Yet Thomas has shown no indication in the past that he cares about the sanctity of institutions or the consequences of his actions. Thomas continually finds himself embroiled in ethics scandals, including a high-profile gifting scandal similar to the one that forced Justice Abe Fortas to resign from the bench in 1969. Thomas’ jurisprudence is equally reckless, as he would declare everything from national child labor laws to the federal ban on whites-only lunch counters unconstitutional.

If Thomas did leak the Court’s deliberations, that still leaves open who the second leaker is (Noam Scheiber makes a strong case that the second leak could be Justice Kennedy). At the moment, however, we know that Thomas is the justice who is most likely to cast long-established practices aside due to a personal crusade. And we know that he already has a good relationship with the reporter who received the Supreme leak.

Nearly three years ago, the Supreme Court rolled back decades of precedent to make it harder for older workers to stand up to age discrimination in the workplace:

Employment discrimination cases are difficult to prove because the plaintiff ultimately must show what their boss was thinking at the time they were fired or demoted–it is illegal for an employer to fire a worker because they think the worker is too old or too black or too female, but not because they think the worker is incompetent or poorly dressed. Since workers don’t have ESP, the Supreme Court long ago put certain procedures in place to make sure that laws banning discrimination amount to more than just empty promises.

“Mixed motive” suits are an example of these procedures. To win a mixed motive case, a plaintiff had to prove that discrimination was one of the reasons behind their boss’ decision to fire or demote them. It was then up to their boss to prove that they would have made the same decision regardless of the worker’s race or gender or age. Workers are spared the nearly impossible task of having to prove that that their boss was thinking only of bigotry when they lashed out at their employee; and employers are given a fair chance to prove that discrimination is not the real reason why the worker was cast aside. . . .[Gross v. FBL Financial Services] eliminates such claims in age discrimination cases. Thanks to Justice Thomas’ majority opinion, victims of age discrimination are helpless unless they can get inside their boss’ head and show that their boss would have behaved differently if the victim had been a little younger.

A bill introduced Tuesday by Sens. Chuck Grassley (R-IA) and Tom Harkin (D-IA) will overturn Gross and restore to older workers the same ability to fight discrimination that they agreed before a 5-4 Supreme Court took it away from them. Although many Senate Democrats have long supported undoing the justices’ mischief in this way, this is the first time a Republican has signed on to the effort — Grassley’s endorsement of the bill is a hopeful sign that it could become law.

Enacting this bill is not simply important because it will restore necessary rights to older workers, it also is important to push back against a Supreme Court that openly flouts its own precedents. Justice Thomas’ majority opinion in Gross acknowledged that his decision was at war with longstanding precedent, but he dismissed this fact by simply saying “it is far from clear that the Court would have the same approach were it to consider the question today in the first instance.” In other words, Thomas believes that, because the Supreme Court is now dominated by five far right justices, it should no longer have to follow precedents from a more sensible era.

Yesterday, former Sen. Rick Santorum (R-PA) surprised Google users and anyone who was around for the 2006 elections by coming within just eight votes of victory in the Iowa Republican caucus. Santorum’s path to the GOP nomination is still quite uncertain, to say the least, but he has now emerged as the most likely rival to Mitt Romney. As such, it is worth considering how both men would approach judicial nominations if they were elected to pick the nation’s federal judges.

As ThinkProgress previously explained, Romney would not pick good judges or justices. Romney is unambiguously pleased with the Roberts Court’s record of deference to wealthy corporations. His four model justices — Roberts, Scalia, Thomas, and Alito — all cast the same unforgivable vote for corporate-owned elections in Citizens United. They each voted to allow a wealthy individual to effectively buy a seat on the West Virginia Supreme Court, and they have consistently pushed more and more creative ways to immunize corporations from the law.

Yet there is reason to suspect that Santorum’s judges would be even worse. At a recent GOP debate, Santorum was the only candidate who identified a single justice as his favorite current member of the Supreme Court — Justice Clarence Thomas.

Frequent readers of this blog do not need to be reminded of how ominous Santorum’s choice is. For one thing, it shows that Santorum takes a very cavalier attitude towards the need for judges to be untainted by outside influences and beyond reproach. Justice Thomas is caught in a long list of ethics scandals, but the most disturbing is probably his penchant for accepting lavish gifts from wealth individuals and corporate-aligned organizations. Leading conservative donor Harlan Crow, whose company often litigates in federal court, provided $500,000 to allow Thomas’s wife to start a Tea Party group and he once gave Thomas a $19,000 Bible that belonged to Frederick Douglass. The American Enterprise Institute (AEI), a conservative think tank which frequently files briefs in Thomas’ Court, also gave Thomas a $15,000 bust of Abraham Lincoln as a gift. As ThinkProgress has explained, this gifting scandal closely resembles a similar one that forced Justice Abe Fortas to resign from the Supreme Court in disgrace in 1969.

Santorum’s affection for Thomas also raises very serious questions about how he views the Constitution. Thomas certainly shares Santorum’s view that the Constitution does not protect Americans’ right to use contraception or choose their own sexual partners, but so do other members of the Supreme Court. Moreover, unlike Justice Antonin Scalia, Thomas does not really share Santorum’s gratuitous belligerence towards gay people. Scalia’s dissent in the seminal gay right’s case Lawrence v. Texas is riddled with angry conspiracy theories about a “homosexual agenda” that has supposedly taken over the legal profession. Thomas’ dissent, by contrast, describes the Texas sodomy law struck down in Lawrence as “uncommonly silly” and warns that “[p]unishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.” If Santorum were looking for someone that shares his cultural grievances, he would have named Scalia has his model justice.

Perhaps the greatest difference between Scalia and Thomas, however, is Thomas’ belief that pretty much everything violates the Constitution (with the exception of state laws criminalizing sex, of course). Thomas has repeatedly advocated a twisted reading of the Constitution that would invalidate a long list of essential laws, including the federal ban on workplace discrimination, similar laws protecting older Americans and Americans with disabilities, the national minimum wage, national child labor laws, and the federal ban on whites-only lunch counters.

Santorum’s selection of Thomas over Scalia strongly suggests that he shares many of Thomas’ most radical views. Now that Santorum has emerged as a major Republican candidate, he has an obligation to explain whether or not he shares his model justice’s desire to see most of the last century declared unconstitutional.

Chief Justice John Roberts rang in the new year as modern chief justices always do, by delivering his annual report on the federal judiciary. As Roberts has done in several previous years, his report focused almost exclusively on a single topic — the many, many ethical questions raised this year about several of the justices’ behavior. Roberts — who, to his credit, has not been caught engaged in any of the same ethical shenanigans as three of his fellow conservative justices — defends some of his colleagues’ actions in his report, and he is not entirely wrong in many of his defenses. Nevertheless, Roberts’ argument is hardly airtight in many places, and it can easily be read as a threat against lawmakers who justifiably believe the Supreme Court has overstepped its ethical bounds and must be reigned in.

Roberts Is Probably Right About Recusal

Most commentators have focused on a single line in Roberts’ report: “I have complete confidence in the capability of my colleagues to determine when recusal is warranted,” and this line almost certainly refers to calls for Justices Clarence Thomas and Elena Kagan to remove themselves from the Affordable Care Act litigation. It is certainly helpful that Roberts is now the second leading Republican to reject the Affordable Care Act’s opponents’ thinly veiled attempt to rig the lawsuit challenging this law by whining that left-of-center Justice Kagan needs to recuse herself. Likewise, although the case for Justice Thomas’ recusal is far less frivolous, it depends upon evidence that Thomas’ wife is currently earning substantial income to try to get health reform repealed. Until such evidence emerges, there is no way to prove that Thomas must remove himself from the case.

A Thinly Veiled Threat?

Roberts’ report defends his colleagues’ ethical behavior, but it also includes several pointed reminders that the Supreme Court does not believe itself to be powerless if elected officials are not satisfied by Roberts’ defense. Roberts points out, correctly, that the Supreme Court is created by the Constitution, but lower courts are created by Congress. As such, Congress has more authority to regulate the conduct of lower court judges then they do the justices themselves. The chief justice also hints several times that, should Congress enact new ethical laws regulating the Supreme Court, the Court will bite back.

He notes that the Judicial Conference of the United States, which writes many of the ethical guidelines for lower court judges, has “no mandate to prescribe rules or standards” for the Supreme Court. He points out that “[t]he Court has never addressed whether Congress may impose” financial disclosure requirements on the justices. And he adds that “the limits of Congress’s power to require recusal have never been tested.” Roberts never comes out and calls congressional regulation of the Supreme Court unconstitutional — indeed, he notes that his “judicial responsibilities preclude [him] from commenting on any ongoing debates about particular issues or the constitutionality of any enacted legislation or pending proposals.” Nevertheless, it is tough not to read his report as a warning that his Court may be prepared to nullify any attempt to tighten the ethical rules guiding its members.

Caesar’s Wife No Longer Lives At The Supreme Court

Ultimately, however, if Congress does decide to trigger a constitutional showdown over Supreme Court ethics, Roberts should look to his own conservative colleagues first in deciding who to blame. Justices Antonin Scalia and Samuel Alito’s participation in conservative political fundraisers is both inappropriate and contrary to the ethical guidelines that Roberts calls the “starting point and a key source of guidance for the Justices.” And nothing can excuse Thomas’ many ethical lapses. Among other things, the tens of thousands of dollars in gifts Thomas received from wealthy benefactors are difficult to distinguish from a very similar gifting scandal that forced Justice Abe Fortas off the Supreme Court in 1969.

Fortas was a liberal justice, and he served under liberal Chief Justice Earl Warren — just as Thomas is very conservative and serves under conservative Chief Justice Roberts. Yet the parallels end there. When the full breadth of Fortas’ gift-taking came out, Warren did not just write a report defending the Supreme Court’s right to police it’s own ethics — he policed those ethics himself by helping push Fortas off the Court.