Don’t Judge Lest Ye Be Judged, but Judge We Must by Maria Grant

Just when you thought things could not get worse from a political perspective, they did. The Supreme Court ruled that the President has presumed immunity for official acts. Pretty unbelievable. For those who do not think this is a big deal, think again. Such broad immunity from criminal prosecution means that checks and balances in the system are almost nonexistent. Politically motivated, groundless investigations and prosecutions can now be considered official acts. Even the assassination of a political rival could be considered an official act. The list goes on. And don’t get me started on the Supreme Court’s damaging reversal of the Chevron decision which will severely limit the ability of Federal agencies to enforce vital environmental, financial, safety, and health regulations. 

And then there is the Supreme Court itself. Already, I have been gobsmacked by the lack of ethical guardrails that the Supreme Court enjoys. 

Many of us who worked or consulted with the Federal government were relentlessly instructed about how careful we must be around even the slightest hint of impropriety. Each year we took a mandatory ethics course in which we were reminded that it is against the law to leverage work on government contracts for financial gain. We were reminded that government employees cannot accept gifts during a procurement which include gratuities, favors, discounts, entertainment, hospitality, and loans. 

Consultants across the country are rigorous in their adherence to these rules. They are extra careful even about casual lunches in offices—careful to have only sandwiches and ice teas so that it in no way is considered unlawful. A few things government employees can accept include light refreshments, a small gift worth under $25 and free attendance at meetings or conferences where an agency person is presenting. Even a book presented to a federal employee has to be worth less than $25.

The Hatch Act, a law that governs political activities of federal civilian executive branch employees, ensures that programs are administered in a nonpartisan fashion; that Federal employees are protected from political coercion; and ensures that Federal employee advancement is based on merit and not political affiliation. Some Federal employees have even more stringent restrictions, including employees in several intelligence agencies, the Secret Service, Office of the Special Counsel, SES employees (Senior Executive Service), administrative law judges, contracts appeals board members, and administrative appeals judges. 

The Hatch Act also prohibits Federal employees from using their authority to influence or affect the outcome of elections; solicit accept or receive political contributions, be candidates for partisan elections, and solicit or discourage political activities of people with business before their employing office. Additionally, employees may not engage in political activities while they are on duty, in the Federal workplace, while wearing government uniforms or badges, and while operating government vehicles. 

Now let’s take a look at some of the activities of Supreme Court Justices Clarence Thomas and Samuel Alito. 

Justice Thomas has received 103 gifts worth more than $2.4 million between 2004 and 2023. These gifts included destination vacations, private jet flights, VIP sport event passes, luxury resort stays, invitations to private golf clubs, and more. These gifts came from wealthy Republican donors. The vast majority of them were not disclosed. 

Justice Thomas’ wife Ginny has participated in activities to help former President Trump overturn his election defeat. She texted White House chief of staff Mark Meadows and contacted lawmakers in Arizona and Wisconsin weeks after the election and before the insurrection on January 6. She also attended the rally at the White House before the insurrectionists marched to the Capitol.

Justice Alito accepted 16 gifts worth a combined $170,095. Alito’s wife Martha-Ann flew an Appeals to Heaven flag and upside-down American flags in the couple’s homes. These flags are known to be associated with far-right policies. Mrs. Alito also committed to flying a Sacred Heart of Jesus flag to protest the display of an LGBTQ flag flown in their neighborhood. The “Sacred” flag is often flown by those who oppose gay rights. 

There is no way it makes sense for the so-called “Supreme” justices of the land to be exempt from laws that other judges and almost every Federal government employee and contractor must follow. 

And let’s also discuss age limits for Congress, the Supreme Court, and the Presidency. 

The average age of senators in Congress right now is 64. Fifty-four senators are older than 65. One senator is 90, four senators are in their 80’s and five are in their 70’s. The average age in the House is 57, with 12 representatives in their 80’s and 15 representatives in their 70’s. Two Supreme Court Justices—the two most conservative ones–are in their 70’s; two more are 69, one is 63, and three are in their 50’s.  

Clarence Thomas joined the Supreme Court in 1991 which means he has been a Justice for 33 years. Justice Alito has served on the Supreme Court since 2006 which means he has been on the Court for 18 years. Ruth Bader Ginsburg took her seat in 1993 and served on the Court for 27 years. 

At this point, the Constitution does not specify qualifications for age, education, profession, term limits, or native-born citizenship for the Supreme Court. This makes no sense. It is also crystal clear that many Supreme Court justices gauge their retirement based on the political party in power, thereby politicizing their appointment even more. 

Congress has no term or age limits, other than that it requires that a candidate be at least 30 years old to be sworn in for the Senate and 25 years old to be sworn in for the House. The presidency has a two four-year term limit, no age limit, and requires that you must be at least 35 years of age, be a natural born citizen, and must have lived in the U.S. for at least 14 years. The median age at Inauguration of incoming Presidents is 55. John F. Kennedy was the youngest elected president sworn in at 43 years. Joe Biden was the oldest elected president sworn in at 78 years.

Does anyone really believe that either of the two current candidates for President—Trump at 78 or Biden at 81—will effectively execute the office of President for four years beginning in January 2025?

It is way beyond time to enforce age limits for Congress, the Supreme Court, and the Presidency. And every effort must be made to establish and adhere to meaningful and enforceable ethics rules for the Supreme Court which both Congress and the Presidency are required to follow. 

Maria Grant was principal-in-charge of the Federal human capital practice of an international consulting firm. While on the Eastern Shore, she focuses on writing, reading, gardening, piano, kayaking, biking, and nature.