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There’s a through line that’s more like an oil pipeline connecting the Troubles that currently beset former President Donald Trump and the Troubles currently plaguing the conservative supermajority at the U.S. Supreme Court. In both cases, acts of naked corruption and likely illegality were hidden from sight and covered up, and in both cases, the highest ranking public officials who had abundant opportunity to fix their earlier mistakes opted not to. As a result, both defenders of Trump’s unlawful retention of classified documents at Mar-a-Lago and defenders of Clarence Thomas’ refusal to disclose lavish gifts now find themselves making cruddy, self-refuting arguments about how powerful people don’t have to follow the law.

It’s not a good look. And it may be starting to affect the way other rule-of-law Republicans behave. Because how much, really, are regular people—who do have to follow the law—expected to tolerate the idea that law is for the littlest people?

Harlan Crow’s gifts to Thomas—multimillion-dollar travel and school tuition fees and rent-free housing for his family—have surely affected public confidence and interest in the Supreme Court this year. There is no longer a lick of doubt that the billionaires, and also the millionaires, paying to play at the highest court in the land are seeing their contributions pay off. The drip-drip-drip of judicial misconduct, teamed with the persistent efforts to hide it, has also forced defenders of the rule of law—notably Chief Justice John Roberts—into making embarrassing claims about vague separation of powers and “judicial independence” concerns, and the ways in which the court should be immune from scrutiny, untouched by regulation, and far above having to explain itself for either of the above.

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By precisely the same token, Donald Trump has now been charged with multiple felonies, not because he hoarded classified documents after he left the White House, but because, given ample, multiple opportunities to correct for that fact, he conspired both to hide the documents and to lie about it, rather than simply return them. To the extent that it’s never the crime but the cover-up, what Trump and his defenders still can’t provide a reasonable answer for is why he didn’t just comply with the requests to give back what he’d taken. As Ryan Goodman put it this week, the sole explanation for Trump’s hanging on to the papers seems to be some version of the preschooler’s defiant “mine, mine, mine.” And so, instead of mounting a defense of Donald Trump’s decision to keep highly classified papers that were never his in the first instance, his staunchest and silliest defenders are forced to advance arguments about all the ways he can do whatever he wants, because having once been president apparently now means that one is king forever.

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The through line, again, is that goofy monarchic arguments advanced to defend either sitting Supreme Court justices or criminally indicted former presidents are rarely persuasive. The first way to justify misconduct is always deflection. Republican Texas Sen. John Cornyn thus mounted a vigorous (I guess?) defense of Thomas’ acceptance of lavish gifts and failure to disclose them in a tweet in which he wrote: “The left is furious it lost control of the Supreme Court, and it wants it back by whatever means possible. The latest effort is a smear on Justice Thomas.” Mike Pence offered the same justification. This is no different than the “weaponized deep state” defenses animating his GOP rivals’ current defenses of Trump. The theory is that it doesn’t matter what your guy did. What matters is that there’s a cabal of evildoers that seeks to take him out, and also, what about what THEY’RE doing, and pursuant to that theory, nobody on your team can ever break the law. Sure, it’s maximalist, certainly it’s incoherent, but it makes for a hell of a Fox News chyron.

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But the really rich arguments transcend witch huntand smearand seek to make structural legal assertions about separation of powers that are apparently meant to ensure lavish lifestyles for the powerful, while sounding as if they could be found in a law review. Versions of that argument include Justice Antonin Scalia’s infamous claim that he didn’t need to recuse himself from a case involving Dick Cheney, despite the fact that he’d gone duck hunting with Dick Cheney, because “if it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined.” Which is not an argument. Or, per Scalia, that because Chief Justice John Marshall had attended dinner parties given by President John Quincy Adams or because Justice Byron White took a ski trip with Bobby Kennedy in 1963, there was no problem with socializing with the famous litigants before them. As applied to Thomas and Crow, the corresponding argument is that justices should be allowed to have wealthy friends who pour money into reshaping the court and the Constitution because, well, everyone should be allowed to have friends. Also, it’s hardly a coincidence that Thomas’ wealthy friends pour money into reshaping the court and the Constitution because that is what makes them such awesome friends in the first instance.

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Similarly, the bulk of what we are seeing as legal claims for Donald Trump’s purported innocence, setting aside the deep state witch-hunt stuff and free-floating whataboutism, are arguments—deeply dangerous ones—that would hold that presidents may keep and retain classified agency documents for as long as they want, to be used however they want, because, well, they are the president, or they once were. Claims about wholesale mind-based declassification, distortions about the Presidential Records Act: So much of this stuff is undergirded by absolute and untenable theories of lifelong uncheckable presidential power. These are not, to be sure, theories that would attach to President Biden, who is deemed a tyrant every time he brushes his teeth. But the general legal theory at this point seems to hold that Trump is the president among presidents, and can do whatever he likes.

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It’s the breadth of these monarchic claims that has started to spook serious Republicans, both in the context of the court and in the context of national intelligence and national security. They are finding themselves weirdly aligned, all of a sudden, with critics who believe that the whole purpose of the experiment with democracy was to throw off claims that it’s basically good to be king. Andrew McCarthy at the National Review, Alan Dershowitz, Bill Barr, and other non-Lego-character-based attorneys are tiptoeing away from that kind of analysis with respect to the former president. And I can’t help but wonder whether some of the justices on the high court, who might otherwise have been reliable votes for curbing the Voting Rights Act last week or limiting the reach of the Indian Child Welfare Act this week, are similarly backing away from some of the most sweeping claims about how, if you’re a justice, they let you do it.

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We still have many cases to come down in the next two weeks, and it’s certainly possible that this brief period of SCOTUS moderation will come to an end, soonish, in a spectacular series of 6–3 decisions tearing down LGBTQ+ rights and affirmative action, and creating uncheckable state legislative powers. (If you’re a legislature, they let you do it.) It’s also possible that something is leading some of this six-member conservative supermajority to blink, and although polling numbers in the wake of Dobbsexplain part of that, one has to wonder whether there is something in the behavior of Justices Samuel Alito and Clarence Thomas that is scaring their colleagues back to the reasonable center. My guess is, if that’s the case, it’s the profoundly unbecoming claims from those particular jurists about their immunity from scrutiny, from criticism, and from the rules themselves that are scaring off their colleagues who hope to serve for several more decades. I mean, it’s one thing when your colleagues are accepting lavish gifts and insulting the free press. It’s quite another when all that is discovered and publicized and, in response, they start to make claims about being above the rules of the road.

I have no creditable explanation for why the #YOLO court, as characterized last year by professor Leah Litman, seems suddenly inclined to want to live for more than just today. The loss of public trust is indisputably a part of it. But grandiose defenses of limitless judicial supremacy may be another. It’s early days. But if we are seeing bad ethical behavior by the justices starting to shape the opinions of their fellow justices, it may be the case that last summer’s rumors of an uncheckable juristocracy were premature.

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