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By Charles P. Pierce

Apr 27, 2021

Rookie Supreme Court Justice Amy Coney Barrett is having an interesting week. On Monday, she and the other eight Wise Souls listened to oral arguments in Americans for Prosperity Foundation v. Rodriquez and Thomas More Law Center v. Bonta.  Both cases involved laws requiring non-profit political groups to report donor information to the IRS. The AFP group mentioned in the first case happens to be a Koch-financed outfit. A closely affiliated organization, Americans For Prosperity, also happened to pay for an ad campaign shilling for Barrett during her lickety-split confirmation process before last November’s election. This has drawn the attention of Senator Sheldon Whitehouse, who dropped the justice a line.

During your recent confirmation proceedings, you were asked in written questions whether you would recuse yourself from Americans for Prosperity Foundation v. Rodriquez (Becerra), No. 19-251, a case then pending on the Court’s certiorari docket. You declined to do so, answering that “[a]s a sitting judge and as a judicial nominee, it would not be appropriate for me to offer an opinion on abstract legal issues or hypotheticals,” and that “[s]uch questions can only be answered through the judicial process.”[1] Because the Supreme Court has since granted the case, these questions are no longer abstract or hypothetical, so we renew the request.

“At a minimum, there should be a public explanation as to why you think recusal is not required under federal law, since your participation in the case on these facts would appear to both conflict with 28 U.S.C. § 455 and effectively overturn Caperton,” the members write. “Understanding this determination will also aid Congress in its ongoing consideration of judicial ethics and transparency rules.”

Of course, Barrett did no such thing. She didn’t even give the senators the courtesy of a response. She sat through the arguments and she will rule on the case, because she is Justice Amy Coney Barrett and you’re not. Whitehouse was not mollified. From Forbes:

...in a statement to Forbes, the senator called the justice’s decision not to recuse “another dent in the Court’s credibility.

“Justice Barrett is ignoring important ethical standards to rule on a case that could open our democracy to further infiltration by dark-money influence, perhaps permanently,” Whitehouse said in an emailed statement to Forbes Monday. “Her choice to press forward in spite of recusal laws also creates a troubling new precedent, and undermines public confidence in the integrity of the Court.”

Forbes points out that AFP also mounted advertising campaigns on behalf of both Justice Neil Gorsuch and Justice Brett Kavanaugh. So the matter of these two cases before the Supreme Court is deeply, obviously, and laughably corrupt. 

Whitehouse has been up to his knees in this issue for a couple of years now. But in Barrett and her running buddies, he runs up against something I’ve noticed in recent years. We are now dealing with the second generation of conservative politicians and jurists who have spent their entire careers in the comfy upholstered hammock of wingnut welfare. From their undergrad days all the way up to the moment the Republican president makes the big call, there’s no real work involved. Their ideas are never really tested, their sense of entitlement is ironclad. Of course, the real world rules don’t apply to them. They never have, so why do we expect they would now? Who’s Senator Whitehouse to call out a glaring ethical contradiction on the part of Justice Barrett? He’s only a Democrat.

Charles P. Pierce Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976.