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it depends upon evidence that Thomas’ wife is currently earning substantial income to try to get health reform repealed.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.

This post is the first in a three-part series on last night’s voting rights speech by Attorney General Eric Holder

Last night, Attorney General Eric Holder traveled to the Lyndon Baines Johnson Presidential Library to give the most comprehensive explanation of the Obama Administration’s voting rights policy to date. The venue was certainly well chosen. Sixty years ago, when Holder was born, southern men who shared his skin color enjoyed no real access to the ballot box. Today, Holder himself is the chief guardian of America’s voting rights. In the America Holder grew up in, men and women faced fire hoses, endured beatings, bled under the blows of billy clubs wrapped in barb wire and spent night after night in jail as part of a decades long struggle to cast a vote. A few decades later, many of those same veterans of peaceful protest marched into the polling booth and elected Barack Obama president. What changed between now and then was the Voting Rights Act, Lyndon Johnson’s signature accomplishment and probably the most important civil rights law in American history.

Yet, as Holder explained, the very voting rights that he is now charged with enforcing are endangered by an all-too-common pattern of voter suppression laws in the states:

As Congressman John Lewis described it, in a speech on the House floor this summer, the voting rights that he worked throughout his life – and nearly gave his life – to ensure are, “under attack… [by] a deliberate and systematic attempt to prevent millions of elderly voters, young voters, students, [and] minority and low-income voters from exercising their constitutional right to engage in the democratic process.” Not only was he referring to the all-too-common deceptive practices we’ve been fighting for years. He was echoing more recent concerns about some of the state-level voting law changes we’ve seen this legislative season.

Since January, more than a dozen states have advanced new voting measures. Some of these new laws are currently under review by the Justice Department, based on our obligations under the Voting Rights Act. Texas and South Carolina, for example, have enacted laws establishing new photo identification requirements that we’re reviewing. We’re also examining a number of changes that Florida has made to its electoral process, including changes to the procedures governing third-party voter registration organizations, as well as changes to early voting procedures, including the number of days in the early voting period.

Although I cannot go into detail about the ongoing review of these and other state-law changes, I can assure you that it will be thorough – and fair. We will examine the facts, and we will apply the law. If a state passes a new voting law and meets its burden of showing that the law is not discriminatory, we will follow the law and approve the change. And where a state can’t meet this burden, we will object as part of our obligation under Section 5 of the Voting Rights Act.

It is both significant and reassuring that the nation’s top lawyer acknowledges the dire threat state voter suppression laws present to our democracy. Yet the sad irony is that, through no fault of his own, America’s first African-American Attorney General may see the worst contraction of voting rights since the Jim Crow era — and the threat comes from a much more powerful place than a handful of state governments.

Make no mistake, voter ID laws are unconstitutional. If the Constitution’s guarantees of equal protection and equal voting rights mean anything, they must mean that laws intended solely to disenfranchise particular kinds of voters — including many racial minority voters — must not be allowed to stand. Yet, in Crawford v. Marion County Election Board, the Supreme Court largely abdicated it’s responsibility to strike these laws down.

Of course, as Holder notes, Section Five of the Voting Rights Act provides him with an important tool that can be used to block these racially discriminatory laws from going into effect in many states. Sadly, the Supreme Court probably has a plan to remove this tool as well. Conservative lawmakers are begging the courts to declare Section Five unconstitutional, and Roberts has strongly hinted in the past that he wants to give them what they want.

Indeed, forty years from now, it is likely we will look back on John Roberts and some of his colleagues on the Court and remember them for doing more to stand in the way of voting rights than nearly any person since Lyndon Johnson drove the knife into Jim Crow more than four decades ago.

Just three months after Romney proclaimed that “corporations are people,” he has pledged to ensure that the Supreme Court will continue to share this delusion. During editorial board meeting yesterday, Romney promised that if he is elected, he will model his Supreme Court picks after corporate America’s most favorite justices:

Republican presidential candidate Mitt Romney said if he had the opportunity to appoint a Supreme Court justice he or she would be in the mold of Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts.

“Their approach is the approach I would encourage,” he said. “I would try to find those who would follow the Constitution.

Setting aside the obvious tension between Romney’s promise to appoint justices like Roberts, Scalia, Thomas, or Alito and his promise to appoint justices who will “follow the Constitution,” it’s important to note exactly what Romney is endorsing by supporting these four justices:

• More Corporate Money In Elections: Every single one of Romney’s model justices were in the majority in Citizens United. That means that every single one of them believes that wealthy corporations should have a nearly unlimited power to buy and sell American elections. Every single one of them also voted to undermine public financing laws in a way that eviscerates candidates without well-moneyed backers’ ability to compete in elections.
• Judges For Sale: Every single one of Romney’s model justices voted in Caperton v. Massey to allow a wealthy coal CEO to pay $3 million to elect a sympathetic justice to a state supreme court in order to stack that court with jurists who would overturn a $50 million verdict against his company.
• Corporate-Owned Courts: Every single one of Romney’s model justices voted to give corporations a nearly unlimited power to force workers and consumers into a privatized, corporate-run arbitration system that overwhelming favors corporations. Under their vision, real courts run by neutral judges are off limits to anyone a clever corporation does business with.
• Dividing And Conquering Ordinary Americans: Every single one of Romney’s model justices voted in AT&T Mobility v. Concepcion to allow corporations to strip their workers and consumers of their ability to bring class action lawsuits. Because of this decision, corporations now have a nearly unlimited power to cheat the people who do business with them — so long as they only do it a few dollars at a time.
• Corporate Immunity To The Law: Every single one of Romney’s model justices voted to give generic drug makers immunity to key state laws after one of their drugs caused a condition called tardive dyskinesia in many of the people who took it. Tardive dyskinesia is an horrific neurological condition that causes sometimes crippling, uncontrollable bodily movements, often in the face:

Roberts, Scalia, Thomas and Alito envision an America where elections are decided by the highest bidder, where corporations control the courts, and where ordinary Americans have to beg corporate permission before they can hold the wealthiest companies accountable to the law. And if Mitt Romney gets his way, there will be even more of them on the Supreme Court.

A fringe anti-abortion group, Personhood USA, has been startlingly successful at pushing forward legislation across the country that would redefine life as beginning at the moment of fertilization, effectively outlawing contraceptives like birth control pills. Although the medical community has long been in agreement that fertilization does not mark the beginning of a pregnancy — fertilized eggs must first be implanted, and only about half of fertilized eggs actually result in a pregnancy — a growing number of lawmakers are supporting Personhood USA’s efforts to buck medical expertise and legally define life as the moment a sperm meets an egg.

If they succeed in passing such a law — and if such a law survives judicial scrutiny — it could turn common forms of birth control into the legal equivalent of a homicide. While “personhood” laws have always been a transparent attempt to outlaw abortion, the legislation supported by groups like Personhood USA goes much further in trying to assert government control over women’s bodies. These laws would recognize every fertilized egg as an individual and complete human being with full rights, and place millions of women in legal jeopardy. According to 2008 numbers, around 11 million American women use birth control pills and another 2 million use intrauterine devices (IUDs).

Contraceptives like the pill and IUDs not only act to prevent fertilization, but, if fertilization does occur, may prevent that fertilized egg from implanting in a woman’s uterus. Personhood USA considers this tantamount to abortion, and wants to make it a punishable offense for women to control their own fertility. Worse, because the proposed legislation could make any effort to terminate a pregnancy a criminal act, it could also bar doctors from saving the lives of women with ectopic pregnancies, which are never viable and need to be terminated as soon as possible.

Also at risk of prosecution would be the millions of women whose fertilized eggs never begin dividing, never implant, or implant but spontaneously abort. This often happens so early on that the woman never even knows she might have been pregnant.

Keith Mason, the president of Personhood USA, is transparent about his motives, telling NPR, “Certainly women, my wife included, would want to know if the pills they’re taking would kill a unique human individual. And I think there’s a lot of misinformation about that, or lack of information.” Sadly, Mason is not alone. Rachel Maddow reports that this Saturday is the fourth annual Protest the Pill event. Each year the event, put on by another fringe group called American Life League, features slogans like “The pill kills babies,” “The pill kills women,” and “The pill kills marriage.”

The very real risk to women posed by the “redefining life” agenda led Colorado to defeat personhood amendments in 2008 and 2010. But Alabama is one step away from passing this legislation, and voters in Mississippi could vote on a personhood amendment to their state Constitution this November. Personhood USA hopes to get proposals on the ballot in nearly half the states by 2012.

In the landmark privacy case Griswold v. Connecticut, the Supreme Court struck down a Connecticut law that made it illegal for married couples to use contraception. It’s difficult to imagine that the justices would overrule Griswold, but not as difficult as it once was. Justice Thomas’ dissent in Lawrence v. Texas leaves little doubt that he would overrule Griswold if given the chance, and Chief Justice Roberts disparaged Griswold in an article he drafted in 1981, although he claimed to have backed away from that view in his confirmation hearing.

The New York Times reports on a pair of studies, one of which studies Supreme Court voting paterns since 1937, which find that the Roberts Court is the most conservative Supreme Court in recent history:

Four of the six most conservative justices of the 44 who have sat on the court since 1937 are serving now: Chief Justice Roberts and Justices Alito, Antonin Scalia and, most conservative of all, Clarence Thomas. (The other two were Chief Justices Burger and Rehnquist.) Justice Anthony M. Kennedy, the swing justice on the current court, is in the top 10.

The Roberts court is finding laws unconstitutional and reversing precedent — two measures of activism — no more often than earlier courts. But the ideological direction of the court’s activism has undergone a marked change toward conservative results. . . .

It is the ideological direction of the decisions that has changed. When the Rehnquist court struck down laws, it reached a liberal result more than 70 percent of the time. The Roberts court has tilted strongly in the opposite direction, reaching a conservative result 60 percent of the time.

The Rehnquist court overruled 45 precedents over 19 years. Sixty percent of those decisions reached a conservative result. The Roberts court overruled eight precedents in its first five years, a slightly lower annual rate. All but one reached a conservative result.

If anything, this data understates the Roberts Court’s rightward drift.  Because the Supreme Court largely gets to choose which cases it wants to hear, a conservative Court will not simply move the law to the right by handing down conservative opinions, it will also do so by hand-selecting cases that achieve conservative results.  In 2008-09 term, for example, the Supreme Court handed down five decisions cutting back environmental law.  Such an event could not have occurred without the justices taking the unusual step of agreeing to hear five environmental cases in a single term.

Moreover, even though American now suffers under the most right-wing Supreme Court in seven decades, right-wing lawmakers are demanding a Court that is even more extreme.  Conservatives repeatedly attacked Supreme Court nominee Elena Kagan for taking positions on health reform and the Second Amendment that are also embraced by ultraconservative Justice Antonin Scalia.  And some senators even embraced a discredited “tenther” view of the Constitution that would declare child labor laws, the federal ban on whites only lunch counters and potentially even Social Security unconstitutional.

It remains to be seen how far the Roberts Court will go in embracing this deeply radical agenda.  John Roberts has only been Chief for five years — and he could have many decades left to replace hard-fought laws with his own right-wing values.