Yesterday, the Supreme Court denied a request by the right-wing group Freedom Watch to hear oral arguments on whether Justice Elena Kagan should recuse herself from the Affordable Care Act litigation. Normally, ThinkProgress would not comment upon such a banal and obviously correct decision, except that it is worth highlighting Freedom Watch’s brief which, sadly, is indicative of the kind of penetrating legal reasoning that characterizes claims that Kagan may not hear this case. Here is just a brief sample:

Simply put, “We the People” are fed up and have already entered into what is in effect a Second American Revolution because judges and other government officials behave as if they are “above the law,” in effect nobility who can do as they please. . . . In short, the comments of Chief Justice Roberts [suggesting that Kagan does not need to recuse] are an affront to the high ethical standards of our Founding Fathers and amount to a subversion of our laws. They are disgraceful at best and at worst amount to obstruction of justice. They are the result of someone who became Chief Justice by first ingratiating himself to the “Washington establishment,” and now seeks to act as the Chief Justice not just of the Court, but of this same establishment – which for decades has pushed the nation to the brink of revolution by representing mostly its own interests, perpetuating and consolidating its power and selling out “We the People.” This is why in large part the nation is in a deep crisis; the majority of Americans have little if any respect for either the Supreme Court or our judiciary as a whole, notwithstanding their current similar disdain for the other two branches of government.

The situation is as bad as in 1776 when “We the People” declared independence from King George III and the British Crown. In the 236 years since the start of the first American Revolution, our current ruling class, which is not of the mettle of our Founding Fathers, – who pledged their sacred honor, fortunes and risked their lives to create a free nation – has come full circle. Today, the Supreme Court and the other two branches of government have assumed the role of a “royalty” – in some ways worse than even King George III – who feel free to ignore the legitimate interests and grievances of “We the People,” because they believe they are a “protected class” and above the law.

So, to be clear, the claim here is that far-right Chief Justice John Roberts is part of a giant conspiracy to help Kagan preserve President Obama’s chief legislative accomplishment, that this conspiracy is “in some ways worse” than monarchy, and that the American people are presently responding to it with a “Second American Revolution.” And this is what passes as legal argument among the Kagan recusal crowd. Sadly, this argument is only slightly better than the absurd claim that the Affordable Care Act itself is unconstitutional.

In just three short years on the Wisconsin Supreme Court, conservative Justice Michael Gableman managed to embroil himself in two major ethics scandals. The first, which arose before he was even elected to the court, arose out of a false ad Gableman ran during his election campaign claiming that his opponent unleashed a child molester on society. This ad led to an official ethics complaint from the state Judicial Commission, although the ethics case was eventually dropped after Gableman’s six colleagues on the state’s highest court split 3-3 along party lines on whether Gableman committed misconduct.

In order to defend himself against this ethics complaint, Gableman received tens of thousands of dollars in free legal fees from a law firm that frequently litigates in front of his court. Yet Gableman has continued to sit on cases brought by that firm — even casting the deciding vote allowing Gov. Scott Walker’s (R) attack on collective bargaining to go into effect.

In response to these two incidents, a member of the state legislature has now introduced a resolution calling for Gableman to be removed from the bench:

A Democratic state lawmaker circulated a resolution Wednesday calling for the ouster of Wisconsin Supreme Court Justice Michael Gableman because he presided over cases involving a law firm that had represented him without charging legal fees.

State Rep. Kelda Helen Roys, an attorney who is also running for Congress for the district covering the city of Madison, asked her colleagues to sign on to the resolution by Jan. 18. The state constitution allows for the Legislature to remove a judge from office with a two-thirds majority vote in both the Senate and Assembly.

Although Roys’ resolution is very unlikely to receive the two-thirds majority it requires in the GOP-controlled state legislature, Wisconsin’s voters are not powerless if they agree with Roys that Gableman’s actions go too far. Because Gableman has served more than a year of his current term in elected office, Wisconsin election law allows him to be recalled.

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.

In 2008, a conservative judge named Michael Gableman narrowly defeated incumbent Wisconsin Supreme Court Justice Louis Butler thanks to nearly $1.3 million in spending from right-wing interest groups and a false ad claiming that Butler unleashed a child molester upon society. This ad later became the subject of an ethics inquiry into Justice Gableman — Wisconsin law forbids judicial candidates from lying about their opponents — although the ethics case was dropped after the six remaining justices split 3-3 along party lines on whether Gableman committed misconduct.

A newly released letter, however, suggests that Gableman managed to violate ethics laws in hiring legal counsel to defend him against these allegations that he violated ethics laws:

State Supreme Court Justice Michael Gableman received free legal service worth thousands of dollars from one of Wisconsin’s largest law firms as it defended him against an ethics charge, according to a letter released Thursday by the firm.

The state’s ethics code says state officials cannot receive anything of value for free because of their position. And a separate ethics code specifically for judges says they cannot accept gifts from anyone who is likely to appear before them.

A former state ethics official on Thursday said authorities should thoroughly investigate how the deal between Gableman and attorney Eric McLeod of Michael Best & Friedrich worked because Gableman did not end up paying any attorneys fees. [...]

Michael Best has five cases currently before the Supreme Court. Gableman is participating in all of them. Gableman did not respond Thursday to a request for an interview.

Sadly, this is hardly the only ethical tangle to emerge on the Wisconsin Supreme Court since Gableman’s election allowed conservatives to seize control over it. With Gableman casting the key fourth vote, the court’s conservatives voted to allow corporate lobbyists to write the court’s ethics rule enabling justices to sit on cases involving their major campaign donors.